WHAT TYPE OF PROPERTY CAN YOU LEAVE IN A WILL?
It is probably best to start by saying what property you cannot leave in a Will;
- Firstly you can not leave property owned as joint tenants. In NSW it is the default position that when husbands and wife’s purchase property together they purchase the property as joint tenants (naturally you can stipulate that you wish to purchase the property as Tenants in Common) because joint tenancies automatically by law, on death, transfer the deceased’s share of the property to the surviving joint tenant no matter what you Will says;
- Property owned by a Trust, as you are not the legal owner of the Trust property and therefore you can not leave Trust property in a Will;
- Life Insurance policies that have a nominated beneficiary. The insurance company will pay the policy in accordance with the nominated beneficiary;
- Superannuation, the proceeds of Superannuation are paid on death to either: your listed nominees or to those persons designated by the Trust of the Superannuation fund in accordance with the Trust Deed of the fund.
SO IF ALL OF THE ABOVE CANNOT BE LEFT IN WILL, WHAT PROPERTY CAN YOU LEAVE IN A WILL?
- Property held by you as Tenants in Common, which is were two or more persons own a distinct interest in the same piece of property. The share may be in different portions. Tenants in Common may deal with their respective shares as they wish during their life time and deal with their shares in their will;
- Cash including money in Bank accounts;
- Personal property such as shares, term deposits, royalties, patents, copyrights;
- Personal property such as cars, artwork, jewellery and furniture.
As always, the answers provided are for your general information only and we ask you to call our office on 1800 650 656 to obtain detailed legal advice for your individual situation.
Peter McManus | Wills and Estate Planning Solicitor