People are often surprised to learn that their Will cannot deal
with all of the assets that they manage or control when they
Generally, your Will can only deal with assets that you hold in
your own name, such as your home, shares and cash in bank
It cannot deal with any assets held jointly, such as property
held as joint tenants or money in joint bank accounts, because
these assets will pass to the other owners automatically when you
die. Usually, assets that you control through a company or a trust
also cannot be dealt with under your Will. However, in some
circumstances and with additional planning, you can pass control of
these structures through your Will.
Superannuation is not a personal asset, but it can form part of
your estate if it is paid to your estate by your trustee after you
die. It is the trustee of your superannuation fund who decides who
will receive your superannuation. It will not automatically go to
the person you wish and a direction in your Will as to who it
should be paid to may not be effective. However, in some
circumstances, you can make sure that it is paid to the people you
choose by using other estate planning tools.
It is also important to be aware that any assets that your Will
can deal with are vulnerable to estate challenges. On the other
hand, assets outside of your estate will not be. For more
information about this, see our article
What are the avenues to challenge a Will?
Anyone with assets in New South Wales should also be aware that
there are special 'notional estate' provisions that can
lead to assets that do not usually form part of a deceased
person's estate being available to make an award in an estate
challenge. For more information about the 'notional estate'
principles, see our article
Is your property in New South Wales protected by your current
Simply making a Will may not be enough. It is important to have
a full estate plan in place, which deals with all of the assets you
control. This is the only way to make sure that you properly pass
control of any assets your Will cannot deal with and protect assets
as far as possible from the risk of estate challenges when you
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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There are several requirements that must be completed by an executor before the distribution of assets to beneficiaries.
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