What assets can and cannot be included in a Will?

Many people mistakenly believe that their Will can dictate the distribution of all their belongings. Yet, this isn't always possible. The nature of each asset and who owns it at the time of death determines if it can be included in a Will, as specified by Section 4 of the Succession Act 2006 (NSW).

It's important to understand that assets fall into two categories: those that are part of the estate and those that are not.

Estate assets refer to the assets owned in an individual's name, constituting their estate. These assets may comprise of the following:

• Real Estate: including land or homes;
• Financial: including bank accounts, shares and bonds;
• Tenants in Common Interests: shares in an asset that is held unanimously with others, in which each tenant possesses their own distinct share;
• Personal Chattels: including jewellery, vehicles and furniture; and
• Trust Interests: loans produced by individuals to a trustee of a trust, in addition to remuneration and funds administered from a trust.

Non-estate assets are those managed by individuals but not fully owned and, therefore, may not be transferable through a Will. These assets may include:

• Jointly Owned Assets: property that is jointly owned with another individual, whereby complete ownership is directly transferred to the living joint tenant by the right of survivorship - this does not constitute as part of your estate;
• Superannuation: dispersed in accordance with the superannuation fund's procedures and do not make up part of your estate;
• Pensions and Annuities: generally precluded from your estate and administered immediately to a mentioned beneficiary;
• Business Interests: usually regulated by partnership arrangements, shareholder agreements, or trust deeds, to establish their distribution following death;
• Assets Owned by Entities: assets confined within partnerships, corporations, or trusts, whereby proprietorship and management are entrusted to the organisation as opposed to the individual;
• Life Insurance Proceeds: contingent on ownership agreements, life insurance disbursements may be administered directly to mentioned beneficiaries; and
• Family Trust Assets: assets of a family trust that are unassigned, which are managed by the trust deed and trustee.

At Greigs Legal, we understand that disclosing the differences between estate assets and non-estate assets is crucial in drafting a Will for a client. If you wish to discuss this topic further, fill in an enquiry form on our website or call us on (02) 4647 2968 to discuss your matter with one of our wills and estate lawyers.