A few years ago a client served me a slice of pie that contained all kinds of things that, in my personal opinion, had no business being anywhere close to baked goods. Funnily enough, at the same time as he passed me that pastry-encased concoction, he handed me a DIY will filled to the brim with all kinds of things that have no business being in a will.
Just like it matters what you put in your meat pie, or fruit pie - it matters what you put in your die pie.
Here are four things that not only have no business going into a will but you can't legally distribute them using your testamentary wishes.
Jointly owned property
Assets such as a house, property or bank account that are owned in joint names automatically pass to the co-owner upon your death and cannot be distributed to another person in your will.
It's important you understand how your property is owned to ensure it will be distributed according to your wishes.
You can find out more about the types of property ownership and associated distribution HERE.
Debts and liabilities
Money you owe to other people or organisations cannot be inherited. All outstanding monies will be paid by your estate prior to distribution to any beneficiaries.
Generally, your family can't be forced to pay debts you leave, but there are a few occasions where a family member could be liable, including:
- A secured debt against property owned by a family member;
- Co-borrowers on an asset;
- A family member acted as guarantor to your debt.
Superannuation and life insurance
Unless you have made a Superannuation Binding Death Benefit Nomination to your personal legal representative (ie your executor) your superannuation does not automatically form part of your estate, even if you have a will.
The Trustee of your superannuation fund will distribute according to their discretion, generally considering dependants first including a spouse, de facto spouse, financially dependent children (any age), or someone in an interdependent relationship.
Payouts from life insurance policies are generally made directly to the nominated beneficiary, by passing the will.
Your body
Your body is not considered property and therefore cannot be left as such in a will.
You may set out your preferences if you wish to donate your organs or body to science as well as your funeral and burial wishes. However these wishes are not legally binding on your executor.
A statement that you don not wish to be cremated is legally binding.
If you have strong view about your funeral, burial, cremation, and/or organ donation you should discuss this with your loved ones and choose an executor who will honour your wishes.
Why it's Important to Get Professional Advice
If you only have a handful of ingredients to add to your pie, you probably don't need a recipe created, tested, and perfected by a qualified chef. The same can be said for your will.
In my experience, most people have an extraordinary number of things to add to their die pie (the sum total of all the things that get put together and then divided up after you die). I'll be the first to admit I'm no chef, but I do know how to put together a strong will, so when you die, everything is just the way it should be - no lumpy bits, or unpalatable decisions for your family to chew over.
At Your Estate Lawyer, we're here to help you navigate life and death so it's stress-free and doesn't set your family up to fight.
The contents of this article do not constitute conveyancing or legal advice and are not intended to be a substitute for either and should not be relied upon as such. You should seek professional advice in relation to your specific circumstances.