“The world is getting to be such a dangerous place, a man is lucky to get out of it alive.” – W.C. Fields.

Increasingly, a large portion of a person’s wealth is comprised of assets that will not form part of their estate when they die and cannot be given away or disposed of in their Will.

Other arrangements need to be made by the deceased to distribute those assets.

The following are examples of assets that are not included in a person’s deceased estate.

Joint Tenancy

When one joint tenant dies, the interest of the deceased joint tenant automatically passes to the surviving joint tenant(s) and cannot be dealt with under the deceased’s Will. The most common asset held in joint tenancy is the family home.

Family Trust

Assets that are held in a family trust do not form part of a deceased estate and therefore cannot be given away in a person’s Will. Assets held by the trust are not owned by any of the beneficiaries. A person can transfer control of a trust by transferring the positions of power in the trust to nominated persons.

Unit Trusts and Companies

Assets held in unit trusts and companies cannot be directly gifted. However, shares in a company and units in a unit trust can be disposed of by the owner.

Superannuation

Superannuation benefits do not automatically form part of a member’s estate upon death of the member. A member’s Will cannot deal with their superannuation benefits, unless the benefits are paid to the estate of the member. Consequently, a person’s superannuation benefits must be dealt with as a separate part of the estate planning process, usually including death benefit nomination.

Life Insurance Policies

Life insurance benefits can only be dealt with in a Will if the deceased is the beneficiary of the policy. If any other person (e.g. the spouse or children of the deceased) is the beneficiary of the policy, it does not form part of the estate of the deceased, so cannot be dealt with under the life insured’s Will.

We can assist if you require advice in respect of estate / succession planning, agribusiness, property law or commercial law, including any litigation relating to those areas.