When you die, will your assets be distributed according to your wishes?

The way in which you own your assets has a significant impact on how you treat these assets under your will and how they are distributed after your death. The important thing to remember is that you can “own” assets in different ways.

Ways of controlling assets

Examples of ways you might own or control your assets include:

  • in your sole name;
  • in joint names;
  • in your superannuation fund;
  • in a family trust; and
  • in a partnership.

How you control your assets is important

In estate planning the way in which you own or control an asset can have significant implications for how that asset will be dealt with after your death. The popularity of structures such as family trusts, family companies and partnerships means that for a lot of people estate planning is quite complex.

Therefore, the way that you structure your estate plan is crucial. Not only will a good plan give effect to your intentions after death, it may also significantly affect the value of your assets when these are transferred.

The table below demonstrates different ownership structures.

How is the asset held?Capable of being dealt with under will?Other Considerations
Sole nameYes
Joint name as joint tenantsNoTitle will pass into the other joint title holder’s name.
Joint names as tenants in common in equal or unequal sharesYesThe testator’s share of the property can be passed to a nominated beneficiary under the Will, otherwise it will form part of the residuary estate.
Family TrustNoThe family trust deed will address the mechanism for transferring control of the trust such as appointment of successor trustees or appointors.
Family CompanyNo, company assets cannot be dealt with by a will. However, the testator can gift shares in the company to particular beneficiaries and in that way ensure control of the company and therefore the assets held by the company are transferred to the intended beneficiaries.Keeping in mind that shareholders select the Directors who in turn control the company.
SuperannuationNoA person can put in place a binding death benefit nomination (BDBN) which directs the Trustee of their Super fund to distribute the money to a nominated person. If a BDBN is not in place, the Trustee of the superannuation fund, in their discretion, can direct a person’s superannuation to be paid to a person’s estate or directly to a person’s dependents.

You may not remember the implications of every method of ownership, but you should remember:

  • how you own or control your different assets is crucial;
  • you must be clear in your will what you intend for your assets such as who they go to or who has control over them; and
  • speak to your lawyer about your assets and your intentions for them.

Our estate planning lawyers have the knowledge to guide you and the skills to reflect your intentions clearly in your will and estate planning documents.

Why you need an Enduring Power of Attorney

An Enduring Power of Attorney is a legal document which allows you to appoint a trusted person or persons to make decisions about financial, property and personal matters on your behalf. An Enduring Power of Attorney is the only way to ensure that you have control over who will make decisions on your behalf if …
Read more

Why You Need a Will

This is a question often presented to the estate planning lawyers in our office. The most obvious answer is that, if there is no will, your estate will be distributed in accordance with the method set out in the Administration and Probate Act 1929 (ACT) (the Act) or the equivalent legislation in the relevant State …
Read more