Published: 25 September 2018
Author: Amanda Burns
Will my Will cover all of my assets?
We may like to think that the purpose of making a Will is so that we have control over who will inherit everything we own when we die. It may be surprising to learn that there are some assets that cannot be controlled by your Will.
Assets registered as jointly owned with another person will pass under the laws of survivorship and not under your Will. The prime example of this is a family home owned by a couple as joint proprietors/joint tenants. If you own your house as joint proprietors with, for example, your spouse or partner, the laws of survivorship apply so that if you die, the house automatically passes to your spouse. This is the case even if your spouse or partner survived you by even just a few minutes. The same rule commonly applies to the contents of your home and other jointly owned assets such as joint bank accounts. The exception to this is where the property is held as 'tenants in common'. It is possible to convert joint tenancy to tenancy in common or vice versa but important to obtain advice about the implications.
If you have jointly owned assets it is critical that you and your partner have "mirror Wills" that cater for the event that you are both involved in an accident, setting out who is to inherit your jointly owned assets if you both die. More on the importance of mirror Wills and the consequences of not having one can be found here - "Will my Will reflect my will? Jointly owned assets and the importance of mirror Wills"
Superannuation is another significant asset that you may not be able to control via your Will. The Trustee of your superannuation fund has the ultimate say in who to pay your superannuation to (including any death insurance through your super fund) when you die. The Trustee of the super fund will exercise its discretion to pay your superannuation to your dependents or into your Estate. The only exception to this is if your superannuation fund allows you to make a binding nomination for your beneficiaries. However, a binding nomination can only be made in favour of a certain class of beneficiaries.
If you own a life insurance policy (other than an insured death benefit through your superannuation fund) you need to check the terms of the policy and see who you have nominated as the beneficiary and/or on whose life the policy is on. It is possible for you to own a policy that relates to the death of another person, e.g. your spouse. It is the terms of the policy that dictates who will be paid out, not the terms of your Will. If you want the life insurance to go to your estate, you would have to ensure that you can make a binding nomination for the beneficiary to be your estate.