Estate vs Non Estate Assets
When making wills in Brisbane or Queensland you should understand which which assets are available to you to leave in your will.
Estate Assets
- Real Property (e.g. house, land, unit) held solely or as tenants in common
- Manufactured homes (e.g. fixed caravan)
- Water allocations
- Bank accounts which are not jointly held
- Shares (in ASX-listed or private companies)
- Life insurance (if streamed through estate)
- Loans owed to the will-maker
- Motor vehicles (cars, boats etc)
- Household contents (collectibles, jewellery, art etc)
- *Trusts (depending on the terms)
- Companies / Partnerships
Non Estate Assets
- Joint Assets (e.g. house owned as joint tenants, joint bank accounts)
- Life insurance (if not streamed through estate)
- Superannuation (if there is no binding death nomination to the Personal Representative of the estate)
- *Trusts (depending on the terms)
Liabilities
You should also keep in mind and inform your solicitor about any liabilities you may have. These commonly include:
- mortgage
- credit cards
- margin loans
- personal and other loans
Digital Assets
Modern technology has created a whole new category of property which may or may not be left in a will.
- cryptocurrency (e.g. bitcoin)
- websites
* Family trusts and the assets contained within them are typically seperate to any will. Whether control of the trust passes in accordance with your wishes in your will depends on the terms of the trust deed and/or trust structure. If you have a family trust then during the estate planning process a solicitor will need to review the terms of the trust deed and company constitution / register of shares (if you have a corporate trustee etc) to ensure that your wishes are carried into effect.
Considerations
Did anyone else contribute to the acquisition of or building up an assets? If so, that person may have an equitable interest in the asset. If you leave this asset in your will then your executors might find themselves defending a claim.
Other strategies our Brisbane estate planning lawyers can help with include:
- creating or severing joint tenancies (to make the ownership as tenants in common). In certain situations a transfer duty exemption can be claimed;
- executing a binding death benefit nomination (either lapsing or non-lapsing) to ensure your superannuation is directed to where and whom you want it to go to;
- creating a digital asset register to keep a record of your digital assets;
- creating testamentary trusts to prevent assets falling into the hands of wasteful beneficiaries or debt collectors of bankrupt loved ones;
- documenting gifts given during lifetime. These should be recorded as a loan.
An example about documenting gifts to children as loans. Mum gives $100,000 to the youngest of 3 children, Jane, to help her get on the property ladder. The two older children don’t need help now as they bought before the boom. If documented as a loan then upon Mum’s death Jane’s debt of $100,000 is offset against her share of the estate. So the $900,000 estate divided 3 ways becomes $200,000 to Jane, and $350,000 each to the two older siblings. Fair, square and the older kids (often the executors) don’t need to feel squeamish about a potential dispute over whether Mum’s intentions were for Jane to get $100,000 + an even share of the estate.
Warning: If you make an inventory of your property do not make notes on it leaving gifts to particular individuals. A note of this sort may be construed as an informal will. It may require a special (and costly) Supreme Court application to prove whether it is valid or not. If you wish to leave particular property to someone, you should make a new will.
Contact our Brisbane Wills and Estates Lawyers to start your estate plan today. We offer a free consultation – call us on 07 3073 2405.