It is important to understand the magnitude of estate planning. Estate planning includes preparing a Will for when you die, but also other documents to ensure your affairs are in order when you die or are unable to look after them yourself.


A will is a critical aspect of any estate plan. Although most people understand how a Will operates, not everyone has one, and many Wills are not up to date. A will is a legally binding document that allows you to state how you want your assets, including financial and personal effects, to be distributed when you die. A will can help to diffuse potential disagreements that may arise following your death. Surviving family members/associates may dispute the ownership and distribution of assets. Although a Will can be contested, your final wishes will be known and this may resolve any disagreements that may arise. When preparing your Will, you will need to ensure it is legally binding. We recommend that you consult a lawyer or professional trustee company.

Some questions you should ask or consider include:

  • What happens if you and your partner die simultaneously?
  • Who will be the legal guardian of your children if you die?
  • Do you want any assets to be given as specific items, or are you happy for everything to be sold and the cash distributed?
  • Have you thought that your assets may have different values when you die or may not be available?
  • Did you know that capital gains tax may apply on the sale of certain assets?
  • Have you considered that assets like superannuation and joint assets do not form a part of your estate and may impact on how equally your estate is divided?
  • Who will be the executor of your will?

The executor is responsible for carrying out your wishes as expressed in your Will. The person you select must be capable of not only performing the role but also working with competent specialists. The administration of an estate can be time consuming and is likely to need investment, taxation, accounting and legal advice.

Assets not included in your Will

The distribution of assets can usually be determined by a Will, however there are few exceptions:

  • Jointly owned assets (held in joint tenancy) are passed directly to the surviving owner(s)
  • Superannuation benefits may pass directly to an individual under a binding nomination or via trustee discretion
  • Income streams (such as account-based pensions) may continue to a reversionary pensioner or pass directly to an individual under a binding nomination or via trustee discretion, or
  • Insurance proceeds may pass directly to a nominated beneficiary.

Joint tenancy

Assets held in joint tenancy cannot be disposed of through a Will – a common example is the family home. However, many investment funds and other assets can also be held in joint tenancy. When one owner dies in a joint tenancy the asset passes automatically to the surviving owner(s). In contrast, assets held as tenants-in-common are considered assets of your estate. It is possible to hold property as tenants-in-common in unequal shares.


Generally, superannuation does not form a part of your estate, unless you specifically nominate that your death benefit is paid to your estate. The proceeds of your superannuation would generally be paid to your beneficiaries under your binding nomination or at the direction of the superannuation fund trustee with the guidance of your non-binding nomination. To ensure your death benefit is paid to the correct person, you must keep your binding nomination up to date and valid. These must usually be updated with your superannuation fund every three years, although more and more superannuation funds are now offering non-lapsing binding death nominations.