What assets generally do not form part of the estate created by my Will?

What are Non-Estate Assets under Australian Law?

The following assets will not generally form part of your estate and are therefore not covered by your Will

That is, assets that are:

❌ Held in superannuation accounts, including any self-managed superannuation fund, unless/until those superannuation assets are transferred into your estate upon your passing pursuant to appropriate superannuation death benefit nominations.

Please refer here for binding superannuation death benefit nominations.

❌ Held in any separate family / discretionary trust;

❌ Owned by a company or held in any unit trust; and/or

❌ Held as “joint tenants” with another person (including bank accounts where you are only able to operate the account jointly with another person);

Assets held as Joint Tenants

Any assets held as joint tenants can only be dealt with as part of the estate if the joint tenancy is first severed into a tenancy-in-common.  

Please note: Our Wills generally do not deal with any assets that are held as joint tenants – however, our Wills give the executor/trustee the power to adjust the proportionate distribution of the estate assets, taking into account both the proportionate distribution of such non-estate assets and the overall tax implications.  

See our FAQ: What is the General Power of Adjustment in a Will?

Foreign Assets

Our Wills are drafted so that they only apply to your assets situated in Australia.  

In relation to any assets held in any overseas jurisdictions, it may be necessary to create a separate Will in the relevant overseas jurisdiction, or if the foreign assets are in a country covered by the relevant treaty, an International Will.

Notional Estates in NSW

In NSW, certain non-estate assets can be considered by a Court in making a Family Provision Order.

For more information please read our FAQ: NSW Family Provision Claims and the concept of the Notional Estate.

Business Succession Planning

If you are a co-owner of any business, consideration should be given to whether your estate will retain or dispose of your share in the business, and vice-versa for the co-owners of the business.

It is highly recommended to put in place a buy/sell agreement to allow for the business to successfully continue operations in the event of the passing or incapacity of a co-owner.  

Under a buy/sell agreement:

🧩 Insurance policies are taken out to cover the death or disablement of each co-owner; and

🧩 If a co-owner dies or becomes incapacitated, he/she is deemed to offer his/her stake for sale to the remaining co-owners and the proceeds of the relevant life insurance policy can be used to fund the purchase of that stake by the remaining co-owners.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.