Estate Planning Basics (and Complexities)

February 17, 2022 BY

HAVING a comprehensive estate plan is essential to avoid unnecessary complications, costs and headaches.

An estate plan goes beyond signing a will. The plan should also consider other assets and situations that wills do not cover.

Jointly held assets are a good example of something that a will won’t cover. Ownership of a joint asset automatically passes to the surviving joint owner upon the death of one owner. This is regardless of what is stated in the deceased owner’s will.

Interestingly, the Property Law Act states that if two joint owners should die at the same time and it is unknown which of the joint owners was the survivor (e.g. in a car crash), then it can be presumed that the younger is the survivor.

This means that the joint asset would pass under the younger’s will, ignoring the senior’s will completely. Therefore, it is usual practice for joint owners to have similarly drafted wills so it is irrelevant who survives before who, because the beneficiaries under both wills are the same.

Superannuation is another asset which is not automatically covered by wills. Superannuation entitlements are to be paid to the person or persons who are nominated directly with the superfund.

There is a catch though – superannuation benefits can only be nominated in favour of a spouse, children, dependants, persons in an inter-dependant relationship, or to the member’s estate. Therefore, if a member wishes to nominate a friend, parent or sibling to receive their super then the member would need to nominate their estate and then deal with the super in their will.

Superannuation funds allow ‘binding’ nominations and ‘non-binding’ nominations. A binding nomination must be paid to the nominated person(s). A non-binding nomination will be considered by the superfund, but ultimately the superfund decides where the superannuation is paid upon the member’s death.

Other assets which do not necessarily form part of wills include trust assets, business assets, international real estate, and some life insurance policies. Each of these assets should be considered and dealt with in the appropriate manner.

The team at Wightons Lawyers is here to help. With multiple accredited specialists in wills and estates we are uniquely stationed to provide the right advice regardless of the complexities. We invite you to contact us on 5221 8777 for an initial appointment.

This article is general information only and is not legal advice or a substitution for such advice. Always seek professional advice suited to your own circumstances and implement a comprehensive plan that covers all assets, not just some.