What’s in an Estate?
Property that you can distribute by the terms of a Will are referred to as estate assets.
If property is not an estate asset then they are not distributable by a Will. It could be that they are distributable according to the discretion of a third party or pass to another person automatically. In short, not all property you own may be dealt with by your Will.
The most common types of assets which need to be distributed after you die are set out below and we have made a distinction between estate and non-estate assets in each instance.
Real Estate
Where you own the property in your sole name, then it is an estate asset. The property is subject to any mortgages or charges registered against it.
Where you own the property as joint tenants with someone else, it is not an estate asset and will automatically transfer into the name of the surviving owner upon your death. Jointly owned properties cannot be dealt with by a Will. Once notified of your death, the relevant land registries will transfer the property into the name(s) of the surviving proprietor(s).
Where you own the property as ‘tenants-in-common’ with someone else, then you can own your share solely or as joint tenants. If you own it solely, the share you own is an estate asset and is distributable by Will.
Superannuation
Where you have completed a binding nomination in favour of your legal personal representative (LPR), and it remains valid when you die, then it will pass to your estate, your superannuation is an estate asset. Your LPR is your executor or administrator, of whom will distribute your superannuation in accordance with the terms of your Will.
In order to nominate your LPR, you will need to sign a Binding Death Benefit Nomination (BDBN) in their favour. These forms are easily accessible online and vary depending on the superannuation fund.
Some funds do not accept BDBNs. Most significantly, the Commonwealth Sector Superannuation Scheme (CSS), the Public Sector Superannuation scheme (PSS), the Defence Force Retirement and Death Benefits scheme (DFRDB) have strict rules about who will receive your superannuation when you die.
BDBNs generally will need to be renewed every three years or else they may become non-binding.
Where you have not nominated your legal personal representative (LPR) as the beneficiary of your superannuation, then your superannuation will be a non-estate asset and cannot be distributed by the terms of your Will.
You may also, where applicable, sign a BDBN in favour of a particular beneficiary which will apply outside the terms of your Will. Different superannuation funds will have varying requirements as to whom can be nominated as a beneficiary (for example, some will only provide for children of the deceased where there is a relationship of financial dependency).
You will need to check with your superannuation fund as to whom they deem to be a validly nominated beneficiary.
This is an area of law where clients frequently require advice. Please call our Estates team on 02 6115 9000 or send an enquiry to estates@fgd.com.au.
Bank Accounts
Where you are the sole owner of the bank account, the balance is an estate asset. Different banks will require different forms in order to release the balance of the relevant accounts to the estate.
Where you own the bank account jointly with someone else, the balance is not an estate asset. Upon notification of your passing, the bank account will become one that is solely owned by the surviving owner.
Shares
Where you own the shares solely, they are estate assets. They may be transferred directly into the name of a beneficiary as per Will, or sold, with the proceeds forming part of the estate.
Where you own the shares jointly with someone else, they are not estate assets. Once notified of your death, the relevant share registries will transfer the shares into the names of the surviving holder(s).
The surviving joint holder will also inherit the costs base for those shares.
Motor Vehicles, Personal Effects, Household Goods and Pets
Where you own them solely, your motor vehicles, personal effects, household goods and pets are estate assets.
You may wish to provide specific gifts of your motor vehicles, personal effects and household goods to your beneficiaries.
This information is not advice and is necessarily general. There are complex circumstances (usually involving the intervention of the law of equity or family provision) where property that would otherwise be an estate asset not may be and property that would normally be a non-estate asset may be an estate asset.
If you seek advice about any of these assets and how to best ensure that they will be distributed to benefit your intended beneficiaries, our specialist Estates team will be able to assist. Please call our Estates team on 02 6115 9000 or send an enquiry to estates@fgd.com.au.
Digital Assets and Cryptocurrency
We are seeing more people making money from their digital presence or storing valuable assets online.
YouTube, Facebook, TikTok, Instagram, and Twitch are just a few examples of how people can utilise the internet to derive an income. It may be that their digital presence is valuable, particularly if it does not depend on their ongoing and direct involvement.
These websites all have different rules for accessing their services and they are set out in their terms of service. When someone dies, the terms of service may completely block access to the account if your family does not have access to your passwords.
Nowhere are passwords more important than for cryptocurrencies. We are finding more and more of our clients hold considerable value in digital assets and blockchain-based currencies such as Bitcoin, Ethereum, Chainlink, Solana and Dogecoin, to name a few.
If your executor cannot easily access your digital wallet then those potentially valuable assets may be lost forever.
We recommend our clients store their passwords securely and in a way that will be accessible if they needed to be.