WHAT IS MY ESTATE?
What we mean is: which of my assets will constitute my ‘estate’ after I die?
To make a Will that effectively deals with the assets of your estate, you need to understand what those assets are.
It might sound simple, but in our work in Wills and Estates we often approached by individuals who misconstrue what assets shall form part of their estate and how these will be dealt with after they die.
Not all items that you ‘own’ will form part of your estate and be gifted to your beneficiaries. There are several types of assets that you will not be able to gift with a Will. Here are a few:
If you own property jointly with someone else, this will probably not form part of your estate. Most jointly owned property passes automatically to the surviving joint owner/s when one owner dies. For example, where a bank account is held jointly by two people, the surviving account holder becomes immediately entitled to the whole amount held in the account.
This is because holding things jointly means that you both have ownership of the whole asset – there are not two defined equal 50% shares held by either person.
The exception to this rule is joint ownership as ‘tenants in common’. This term typically relates to real estate ownership. When jointly purchasing real property, there are two options for the mode of holding of the property: joint tenants; and tenants in common. Joint tenants is a true joint ownership as explained above; the joint owners both have ownership of 100% of the property. If the property is held as tenants in common, there are two (or more) defined shares of ownership, which may be equal (50:50) or in different proportions.
A property owned as joint tenants, when one of the owners dies, will automatically pass to the surviving owner/s. A property owned as tenants in common will not pass automatically, and the share held by the deceased owner will pass in accordance with their Will (if they have one). A clause in your Will that deals with your half of joint property will be ineffectual, unless that property is held as tenants in common.
Superannuation can be one of your largest assets, but it is not technically part of your estate. This is because of the nature of the ownership of the funds. Unlike money held in a bank account which is owned by the account holder, a superannuation fund is held by the trustee of the fund for the benefit of the member. The superannuation policy is a contract between you and the trustee, which usually states that the money held will become your property upon retirement.
The trustee of the super fund usually has ultimate discretion to apply the money held in the super fund. We advise our clients to specifically address their superannuation in their Will, as this will provide instructions to your trustee as to what should be done with the funds. However, this does not provide an absolute guarantee that the funds will be paid in accordance with your wishes. The trustee will make its own enquiries to determine who should receive the funds.
Your superannuation policy may also have a death benefit payable to your nominated person when you die. This amount is also held by the trustee, on trust for your nominated person. It is not your property, nor can it ever become your property. Therefore, a death benefit is not part of your estate, even though it will become payable after you die. If you have not made a binding death benefit nomination, as with superannuation, there is no guarantee that the death benefit will be paid where you intended. The trustee has discretion to pay the benefit where it thinks fit.
For this reason, it is imperative that you ensure you have made a binding death benefit nomination. And make sure that the nomination is always up-to-date, as some policies require that you renew the nomination periodically. You should check the terms of your super fund to make sure you know what is required.
Funeral / Life Insurance
Similar to a superannuation death benefit, this is a contract between you and the insurance company nominating someone else (family etc) to receive a lump sum payment. Even though you are the one paying the premiums, the company is holding that money on trust for the person you have named as beneficiary, so the funds are not owned by you.
The exception to this is that, once your funeral has been paid for, any money left over from your funeral insurance payout will form part of your estate.
Final thoughts: remember that any debts you have will be paid from your estate. The true value of your estate is the net value of the assets less the debts.