Wills cover most property and assets, but there are some exclusions to consider. We have listed some of the most common types of property that cannot be given by will for you to think about:
1. Jointly held property. This passes automatically to the surviving joint owner (or owners) on the death of the first dying joint owner — it does not form part of the estate of the first person dying. (If you own property with another person you may hold it either as ‘joint tenants’ or as ‘tenants in common’. It is easy to confuse the two, and it is important to be sure what type of tenancy you have in the property.)
2. Property held in trust. This passes to or is held for the beneficiaries of the trust according to the terms of the trust.
3. Shares. Certain shares in private companies cannot be given by will.
4. Partnership property. Your interest in partnership property may be given by will, although partnership property itself cannot be given by will.
5. Superannuation. Your superannuation arrangements may not entitle you to dispose of your superannuation assets by your will. The rules differ from scheme to scheme — you should discuss the matter with the administrators of your superannuation fund.
6. Proceeds of life insurance policies. If the owner of the policy has nominated a beneficiary of the policy, the nomination takes precedence over the terms of the will. It follows that, where a nomination is made, the proceeds of the policy do not form part of the estate. If you wish the proceeds of the policy to go to someone other than the nominee, you cannot do it by will: you must change the nomination. If you are not sure whether you nominated a beneficiary, or who you nominated, consult the insurance company concerned.
7. Capital guarantee deposits. Some capital guarantee deposits where a beneficiary is nominated (for example, with friendly societies, and some banks) cannot be given by will.
8. Property sold but not yet transferred. Property you have contracted to sell, but not yet transferred, cannot be given by will.
9/ Property subject to a contract to leave by will. Property you have contracted to leave by will, and property subject to a mutual wills agreement, generally cannot be given by will, but the question is complicated and good legal advice is required.
If you haven't got a Will, or you've been meaning to update yours, give us a call to make an appointment in Bathurst, Oberon, Lithgow or via Zoom on 1800 650 656. We're here to help you and your family!
Peter McManus | Solicitor