Property that you can distribute by the terms of a Will are referred to as estate assets.

Not all property you own may be dealt with by your Will. If property is not an estate asset, it is not distributable by a Will. It could be it passes to another person automatically or is distributable according to the discretion of a third party.

Set out below are the most common types of assets to be distributed after your passing, with estate assets distinguished from non-estate assets.

Real Estate

Property you own in your sole name is, subject to any mortgages or charges registered against it, an estate asset.

Property you own as joint tenants with someone else is not an estate asset and will automatically transfer into the name of the surviving owner upon your passing. Jointly owned properties cannot be dealt with by a Will: once notified of your passing, the NSW Land Registry Services 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, 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), on your passing your superannuation will become an estate asset. Your LPR is your executor or administrator, who will distribute your superannuation in accordance with the terms of your Will.

Where you have not nominated your LPR as the beneficiary of your superannuation, your superannuation will be a non-estate asset and cannot be distributed by 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 (accessible online) vary depending on the superannuation fund.

BDBNs generally will need to be renewed every three years or else they may become non-binding.

Some funds do not accept BDBNs. Most significantly, the Public Sector Superannuation scheme (PSS), the Commonwealth Sector Superannuation Scheme (CSS), and the Defence Force Retirement and Death Benefits scheme (DFRDB) have strict rules about who will receive your superannuation on your passing.

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 who you can nominate as a beneficiary (e.g. some provide for children of the deceased only where there is a relationship of financial dependency).

You need to check with your superannuation fund as to whom they deem to be a validly nominated beneficiary.

Bank Accounts

Where you are the sole owner of the bank account, the balance is an estate asset. Banks require your LPR to complete forms before they will release account balances to the estate.

Where you own the bank account jointly, the balance is not an estate asset. Upon notification of your passing, the bank account become solely owned by the surviving owner.

Shares

Shares you own solely 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.

Shares you own jointly with someone else are not estate assets. Upon being notified of your passing, the 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 personal effects, motor vehicles, household goods and pets are estate assets.

Digital Assets and Cryptocurrency

We are seeing more people making money from their digital presence or storing valuable assets online.

Instagram, YouTube, Facebook, Twitch and TikTok are examples of how people can utilise the internet to derive an income. Their digital presence may be valuable, particularly if it does not depend on their ongoing and direct involvement.

These websites all have different rules for accessing their services 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. If your PLR cannot easily access your digital wallet then those potentially valuable assets may be lost forever. We strongly suggest that you store passwords in secure and easily accessible places.

Here to Help

Contact us for advice if you are unsure whether an asset would be considered an estate asset.