You have made a Will and set out who you want to provide for. But will everything you own actually be distributed under it?
That depends on what you own and how you own it. Your Will deals with assets that form part of your estate. A jointly owned home may pass to its surviving owner, while your superannuation may be paid under your fund’s rules. If you have a family trust or company, there may also be decisions about who takes control after your death.
Understanding these differences is an important part of estate planning in South Australia. It helps you check whether your Will and your other arrangements are working towards the same outcome.
Does a Will cover jointly owned property?
It depends on how the property is held. Two people can own a home together as joint tenants or as tenants in common. The distinction can make a significant difference when one owner dies.
Joint tenants
If you own a property as joint tenants, the surviving owner generally becomes the owner of the whole property when you die. Your interest does not pass under your Will.
For example, imagine you and your partner own your home as joint tenants. Your Will says your children should inherit your share of the home. Despite that wording, the home would generally pass to your partner as the surviving joint tenant.
That may be exactly what you want. The point is to know that the ownership arrangement, rather than the wording of the Will, generally determines what happens to that property.
Tenants in common
If you own a property as tenants in common, each owner has a separate share. Your share can generally form part of your estate and be dealt with under your Will.
This distinction can be especially relevant for blended families, property owned with a sibling, or a home purchased with someone other than a spouse or partner. The right arrangement depends on your circumstances and what you are trying to achieve.
What to check: Find out how the property is recorded on its title. Owning a home “together” does not, by itself, tell you which arrangement applies.
Does your Will decide who receives your superannuation?
Not necessarily. Superannuation is generally dealt with under superannuation law and your fund’s rules. Your fund may pay a death benefit directly to an eligible person or to your legal personal representative, who deals with your estate.
That means naming someone in your Will does not automatically direct your super fund to pay your benefit to that person. If the benefit is paid to your estate, your Will then becomes relevant to its distribution.
What is a death benefit nomination?
A death benefit nomination tells your super fund who you would like to receive your benefit when you die. Depending on the fund’s rules, a nomination may be binding or non-binding.
A valid binding nomination directs the fund to pay the benefit as nominated, provided the nomination complies with the applicable rules. With a non-binding nomination, the fund trustee considers your wishes but makes the payment decision under the fund’s rules and superannuation law. Some binding nominations also expire and need to be renewed.
For example, someone might update their Will after a major relationship change but forget that they made a super nomination years earlier. Reviewing only the Will could leave an important part of their plan unchecked.
What to check: Ask each super fund whether you have a nomination, whom it names, what type it is and whether it remains valid. If you have more than one fund, check each one.
What if you have a family trust or company?
A Will may also be only one part of planning for a trust or business.
Assets held in a family trust are held by its trustee for the benefit of the trust’s beneficiaries. They are not necessarily personal assets you can leave to someone in your Will. The trust deed and its arrangements for control need to be considered.
A company is a separate legal entity that owns its own assets. You may own shares in the company, but that is different from personally owning its property, equipment or bank accounts. If you run a business, your plan may need to consider both who receives your shares and who can make decisions for the company after your death.
These arrangements can become complex, particularly where several family members are involved. They are worth raising during an estate planning consultation so the relevant documents can be reviewed together.
How can you check whether your estate plan works together?
You do not need to work out every legal detail yourself. A helpful starting point is to make a list of what you own and gather the documents that may affect what happens to it:
Your current Will
Property title details for jointly owned real estate
Super fund details and death benefit nominations
Trust deeds or company documents, if applicable
Details of any significant changes to your relationships, family or assets
Then consider the practical question: if these arrangements operated today, would they support the people you intend to provide for?
The answer may be straightforward, or it may reveal something that needs attention. For instance, a Will could leave assets to children while a jointly owned home passes to a surviving partner. Those outcomes may work well together, but they should be considered deliberately.
Plan for the full picture
A Will is an essential part of many estate plans, but it does not necessarily direct every asset. Property ownership, super nominations and business structures can each affect what happens after your death.
If you have superannuation, jointly owned property, a trust or a business, book an Estate Planning consultation with Brite Legal.
We can help you understand which documents and arrangements need to be considered together, so you can make informed decisions for your family’s future.
This information is general and does not constitute legal advice. Your circumstances may require advice tailored to you.
Written by Brite Legal
Reviewed by Georgia Hunter, Solicitor
Georgia is a solicitor at Brite Legal, assisting clients with family law, property settlement, mediation and estate planning matters across South Australia.
This article has been legally reviewed to help ensure the information is accurate and up to date at the time of publication.