Assets which cannot be put in a will

So are there certain types of property/assets you cannot put in a will? Absolutely. However, not many people are aware of this and often make the mistake of listing items they cannot leave to their loved ones. There are also instances that partnering with certain superannuation funds could prevent you from leaving that money to your loved ones.  

Jointly-owned property
In Australia you cannot list jointly held property in a will. This passes automatically to the surviving joint owner (or owners) on the death of the first dying joint owner. It does not form part of the estate of the first person dying.
Property held in trust
This passes to or is held for the beneficiaries of the trust according to the terms of the trust.
Shares
Certain shares in private companies cannot be given by will.
Superannuation
Your superannuation arrangements may not entitle you to dispose of your superannuation assets by your will. The rules differ from scheme to scheme — you should discuss the matter with your superannuation fund.
Proceeds of life insurance policies

If the owner of the policy has nominated a beneficiary of the policy, the nomination takes precedence over the terms of the will.


It follows that, where a nomination is made, the proceeds of the policy do not form part of the estate.

So, now that you know what to omit in a will.
What are the first steps to creating a will?
Step 1 is to always list your assets. It is a very important step and what’s more important is that your executor has your entire list of liabilities and assets easily accessible to them. This will ensure that your estate is managed smoothly.
Assets can include the following
  • Property/land (includes assets with security/mortgage)
  • Business assets
  • Bank/cash deposits
  • Sticks/shares
  • Valuables. This can include vehicles, jewellery, art etc.
  • Intellectual property/copyrights
  • Royalties/patents
Overseas assets

If you have overseas assets, we highly advise you to draft your will with a qualified solicitor. This is due to foreign countries potentially having different rules about how wills are handled and interpreted. They may also have different requirements for what makes a will valid, and have different tax and inheritance laws.


If you would like a free consultation with one of our legal professionals, feel free to fill out our form or call us directly. We’re here to help, genuinely.

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