Your last will and testament is an important document giving instructions about how you wish your family to handle your estate after you die. However, a will isn’t necessarily appropriate for all property. In fact, certain assets cannot be distributed through a will at all. So, what should you not include in your will, and what are your alternatives?
You cannot include your superannuation interest in your will. This restriction applies whether you’re with a retail or industry super fund, or have a self-managed super fund. This is because your superannuation isn’t part of your estate as it’s held in trust by your super fund. Despite this, you can still control what happens to your super if you die.
You can name a superannuation beneficiary by submitting a binding death benefit nomination to your super fund. A nomination can be lapsing, meaning you must renew it every three years, or non-lapsing, meaning it will remain in place until cancelled or replaced. If you are retired and receiving payments, you can make a reversionary nomination to have payments transferred to someone else.
Superannuation law only allows you to name dependants as a death benefit or reversionary nominee. Dependants include:
- Your spouse or de facto partner;
- Your child;
- Someone financially dependent on you;
- Someone in an interdependent relationship with you.
Interdependency exists if the parties are;
- In a close, domestic relationship; and
- There is financial and personal care involved.
While you don’t generally need to name a beneficiary in your life insurance policy, it’s highly recommended. You can nominate anyone over 18 years old, and they will receive the payout directly, bypassing your will. They’ll also receive the payment in a short time. In contrast, a will can take a couple of months to go through probate. You can also nominate a contingent beneficiary to receive the money in the event your primary beneficiary dies.
If there’s no beneficiary, the payout will form part of your estate for your will’s executor to distribute.
Jointly owned property
Major assets like the marital home often have more than one owner. If you are a joint owner, you can’t list the asset in your will. Instead, if you die, full ownership automatically passes to the surviving owner under the rules of survivorship.
However, what happens if it’s not clear who survived who? Joint owners may die simultaneously; for example, in a car accident. In this case, the deaths are presumed to have occurred according to seniority, with the younger owner surviving the older. The asset will then become part of the younger party’s estate.
Tenants in common
An alternative to joint ownership is to be ‘tenants in common’. This arrangement means each party owns a percentage of the asset. If one owner dies, their stake in the property is eligible for distribution in their will.
In a discretionary trust, trustees hold assets such as money or shares for the benefit of beneficiaries. Beneficiaries receive distributions at the trustee’s discretion. Discretionary trusts may also have appointers who have ultimate control of the trust and can nominate and remove trustees.
Discretionary trusts are governed by a trust deed that sets out how the trust will operate. How a person’s will affects a discretionary trust depends on the terms of the deed and the person’s relationship to the trust.
Since the trustee controls distributions from the trust, beneficiaries can’t bequeath a right to future distributions in their will.
Whether a trustee can nominate a successor in their will depends on the terms of the trust deed. If the trust has an appointer, they will usually have the sole right to nominate the trustee’s successor.
As the primary authority in a discretionary trust, appointers can usually name a successor in their will. If they don’t, the trust deed often transfers the role to their legal personal representative, which is generally the appointer’s executor.
Let us help
It may not always be clear what property you can include in your will. The experienced team at Life Law Solutions will take the stress out of your estate planning and ensure it meets your individual needs.