Many people assume that having a Will alone is enough to manage all of your assets.
While having a high quality Will is a great start, it doesn’t necessarily cover everything.
Not all types of assets are included in your estate and controlled by you Will.
What’s Not Included in Your Estate
Jointly owned assets
Any properties you own with another person as a joint tenant will not be included in the estate.
When a joint tenant of a property dies then the person’s interest in the property passes automatically to the surviving joint tenant, assuming they meet a given set of rules for survivorship.
A formalised application to the Land Titles Office may also need to be made on behalf of the surviving tenant.
However, if you own property together with another person “as tenants in common” then your share or interest in that property will be controlled by your Will.
A good estate planning lawyer such as Gill and Lane can help you establish your specific circumstances and plan what happens upon your death.
Discretionary Trusts, unit trusts and companies
Whether a Trust Asset forms part of a deceased estate depends on the type of estate and trust.
Generally a trust is a separate legal entity and remains under the control of the trustee or successor trustee appointed after your death (in the case you were the trustee).
Assets owned by discretionary trusts, unit trust or companies controlled by you don’t form part of your estate.
However any shares in the company or units that you own, are considered your assets and will be included in your estate and distributed according to your Will.
Existing trusts such as a family trust also don’t form part of your estate.
You may also like to read this article about setting up Testamentary Trusts—or trusts that come into effect after the death of the person making the Will.
When you set up a life insurance policy you also nominate a beneficiary. Generally the proceeds of a life policy are paid directly to the beneficiary, without any need to be included in a Will.
If you wish for your life insurance benefits to be controlled by the terms of your Will then you need to nominate your estate as the beneficiary of your policy.
Again a good estate planning lawyer such as Gill and Lane can help you establish your specific circumstances and account for these in your Will and estate plan,
Typically superannuation benefits and life insurance associated with your superannuation are not considered part of an overall estate.
When you set up your superannuation fund and any associated life insurance you would have nominated beneficiar(ies) who in most cases will receive the benefits upon your death.
However if there is any dispute or confusion between your Will beneficiar(ies) and your superannuation beneficiar(ies), the Superannuation Trustees will be left with a decision about where to allocate the benefits – a decision you have no control over. This may result in lengthy delays and benefits being paid to unintended recipients.
In this case you should prepare a Binding Death Benefit Nomination (and ensure it is up-to-date as they expire every three years) to provide greater certainty about who will receive your the benefits in the event of your death.
A well thought-out and executed estate plan and high quality Will can help ensure all of your assets are managed according to your wishes.
It’s important to speak to qualified Wills and Estate professional such as Gill & Lane Solicitors for advice.