Just when you think you've got all your assets under control
and you know exactly what will happen to your estate when you die,
there will always be a complication you hadn't considered.
Take for instance assets you own as a joint tenant. This means
you own a property equally with someone else - usually your spouse
Tony Mitchell of Stacks Law Firm says it doesn't matter to
whom you've left your share of the joint tenancy in your will -
if you die first then assets you own as a joint tenant will pass to
the surviving joint tenant, and will not become part of your estate
to include in your will.
In other words your children could miss out on inheriting your
half of the house as it will go to the surviving joint tenant. That
person could be a new spouse with their own children to look
"Assets that are owned by a company or trust are not owned
by you personally, even if you are able to control the company or
trust, for example, if you own all of the shares in a
company," says Mr Mitchell.
Assets that are owned by a company or a trust will not form part
of your estate, and cannot be left by you to anybody in your
Assets owned by a trust, including a self managed superannuation
fund, are controlled by the trustee of the trust.
It is essential that planning of your estate deals with this so
that after you die it passes to the person you wish to control
companies and trusts. If you don't, assets owned by your
companies and trusts may not be dealt with in accordance with your
wishes. For example:
If you and your spouse both leave your shares in your family
company (or in a company that is the trustee of your family trust)
to the survivor, they will be able to do whatever he or she wishes
with the assets of the family company or trust.
If the survivor leaves the shares in your family company (or in
the trustee of your family trust) to your children equally, a
majority in number of your children may be able to take all of the
assets of your family company (or trust) themselves, and exclude
your other children from sharing in those assets.
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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If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
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