Distribution of assets after your death – what do you REALLY own?


Posted By on 5/06/24 at 9:00 AM

Dying without a will can make it more challenging for your next of kin to deal with your assets after your death. Having said that, while having a valid will does make the distribution of assets a lot easier, there are certain types of assets that your will might not be able to deal with.

It’s important to understand that you don’t necessarily ‘own’ what you think you ‘own.’ You might have control or influence over an asset without being the ‘owner’ of that asset. Here are some common scenarios.

  • Joint ownership: If you are the joint owner of an asset (such as a house or other property), that asset passes automatically to your surviving joint owner on the date you die. This occurs under the law of survivorship and without regard to your will.
  • Superannuation: Money standing to your credit in a superannuation fund is regulated by the terms of the relevant superannuation fund trust deed and any valid binding death benefit nomination in place.
  • Life insurance: Life insurance claim benefits are paid by the insurer to the beneficiary named in the life insurance policy.
  • Private company: You might own shares in a family company and regard the assets owned by that company as your own. However, a company is a separate entity. The company does not die just because you have died. Assets owned by the company will continue to be owned by the company after your death. Your shares in the company, however, are an asset that you can deal with via your will.
  • Family trust: You might be a trustee of a family discretionary trust and regard the assets owned by the trust as your own. However, the trust is a separate entity – again, the trust does not die just because you have died. Assets owned by the trust will continue to be owned by the trust after your death.
What should I do?

Having a valid will is of course an essential tool in facilitating the distribution of assets after your death. However the process of drafting that will should include awareness of, and complementary strategies for dealing with, your interest in assets such as those mentioned above.

Further information

If you have any questions, or require assistance with preparing a valid will or other estate matters, please contact our expert Wills & Estates team.

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KHQ Lawyers - John Toohey

John Toohey Senior Consultant

John has been advising individuals, generations of families, trustee companies, schools, and charitable organisations since commencing practice in 1983. He values the development of long-term professional... Read More