Having your Will in place ensures that your assets are distributed to your loved ones according to your wishes. Typical assets include property, cars, bank accounts, jewellery or even limited edition shoes. However, not all these assets may be distributable under your Will.
Jointly owned assets
Assets that you own jointly with another person cannot be distributed under a Will. For example, a bank account that you hold jointly with a partner cannot be distributed. This is because when you pass away, the surviving party will automatically receive your share of the asset if jointly held.
Another common asset that cannot be distributed under a Will is property. Your property can be held either in equal shares jointly or via tenants in common. When property is held jointly, the same rule as above applies, that any of the surviving party automatically receives the deceased person’s share. There is a misconception that property cannot be held equally via tenants in common. However, a person holding property in a 50:50 split via tenants in common can distribute their share under a Will.
Superannuation
Whilst it is commonly understood that superannuation is an asset, a lesser-known fact is that superannuation cannot be distributed under a Will. Superannuation benefits are governed by its own legislation which are separate from Wills.
The form of the benefit payment and recipient will depend on the superannuation provider that you are registered with. You must nominate a recipient for them to receive your superannuation benefits. This nomination is called a ‘binding death nomination’ and is generally valid for a maximum of 3 years before expiring. Some superannuation providers offer a ‘non-lapsing binding death nomination’. These nominations do not have an expiration period.
Companies
If you are a director of a company, you cannot direct assets of the company under your Will or name a person to take your position. The company’s constitution will generally set out the procedures to take place when a director passes away. Any surviving directors can continue to manage the company until a new director is appointed.
You may consider ‘gifting’ the shares of your company to selected beneficiaries. In that way, you can ensure control of the company is transferred as you intended after death.
When drafting your Will, it must be specifically worded so your distribution intentions are clear to your executors. W Legal Group’s Wills and Estates lawyers can assist you with drafting your Will. Email us at hello@wlegalgroup.com.au to find out more!
