By Grindal Legal Principal Lawyer, Christine Crupi
Did you know that a Will is not always capable of dealing with all the assets that you own or control? There is a common misconception that executing a Will guarantees that all your assets will be distributed according to your final wishes. A Will, however, only covers the assets or interests you own personally in certain circumstances. This can include real estate, personal bank accounts, personal belongings, intellectual property, digital assets and even pets!
Assets that are typically not covered in your Will are those that are subject to specific legal rules and regulations and include:
Assets Held Jointly: If you own property or assets jointly with another person as joint tenants, these assets will generally pass to the surviving joint owner and not via your Will;
Superannuation Funds: Your superannuation benefits, including any death benefits, are generally not controlled by your Will. You should nominate beneficiaries of such benefits through your superannuation fund provider or via a binding death benefit nomination. If you intend for your Will to direct how your superannuation death benefits are distributed, then you can consider nominating your Legal Personal Representative as your nominated beneficiary;
Insurance Policies: The proceeds from your life insurance policies, such as a death benefits, pass directly to the nominated beneficiaries listed on the policy and do not pass through your Will. To bring the proceeds of your policy into your estate, you can consider nominating your Legal Personal Representative as your beneficiary;
Assets Held in a Trust: If you have established a trust, the assets held in that trust are managed and distributed according to the terms of the trust deed and do not form part of your estate for distribution via you Will. Your Will however can play an important role in determining who will stand in your shoes as controller of this trust on your death. A review of the trust deed is usually required to determine what happens following the death of an appointor and/or trustee of a trust and to make sure the trust deed does not contradict the directions made in the Will;
Property Held in a Company: If you own shares in a company that holds property, the ownership of those shares may pass according to the company's constitution or shareholders' agreement rather than your Will; and
Assets Subject to Foreign Jurisdiction: If you own assets in other countries, they may be subject to the laws and regulations of those countries, which could impact their distribution.
If you are concerned about the future of the assets you hold in one of the above structures, we encourage you to contact our Wills and Estates team who can advise you further on how these important assets and structures can be considered and dealt with as part of your estate plan to give you peace of mind.
Disclaimer: This article does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.