What Assets Can You Leave by Your Will?

Posted by - - Will & Estates.

The first step in deciding how and to whom you wish to leave your assets is to identify what your ‘assets’ are. Broadly speaking, they can be divided into ‘estate assets’ and ‘non-estate assets’. Only the former can be left by your will. This is a short list of some estate assets: personal effects; a car owned by you; bank accounts held solely in your name; real estate held solely in your name or as tenant in common with another person. And this is a short list of ‘non-estate assets’: an interest in a superannuation fund; the assets of a family trust; the assets of a company; property you own as trustee; property you own as joint tenant with another person.

The difference between the two categories is fundamental and of growing importance, as an increasing proportion of personal wealth is being held in superannuation funds, family trusts, and in real estate where the owners are joint tenants. Again, none of the assets held this way can pass by your will. If you wish to have some control over how those assets are dealt with after your death—who will own them, who will benefit from them—then you will need to adopt techniques other than a will. And while a will can sometimes be simple, these other techniques are almost never simple. They each require a degree of understanding and consideration which is difficult to achieve without competent advice from a lawyer or an accountant, or preferably both.

These techniques interact with a number of relatively complex areas of the law, including taxation, inheritance claims, property law, family law, trust law, superannuation law, and bankruptcy law. You cannot expect to bring to fruition your intentions as to how your assets (estate and non-estate) will be dealt with after your death unless you understand the relevant legal principles, and have your intentions property and correctly drafted.

Finally, complexity is not the fault of lawyers. It is the result of an inherent property of life: the tendency to increasing complexity. It is you, and it is all around you—complex ecospheres (having evolved from single-celled organisms), complex electronics, complex social relationships, so on. The law of inheritance is no different.

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