When you are drafting your Will, it is quite natural to feel some confusion about how to go about beginning to put it together. To help to work it out, you need to make a list of what you own, either in your own name or with someone else, so that you can work out what you may distribute as part of your estate.
For example, you might own property with your partner or have shares in a company, and want to include this as a specific gift in your Will. Or perhaps you would like to leave a portion of an asset you own to an organisation, and also want to leave a bequest to a charity. This is where identifying all of your assets is vital, as it ensures that your Will is clear, valid, and accurate.
Working out the assets for distribution in your Will can be complicated, which is why it is important to seek professional advice from a Will and Estate Lawyer with experience. It is important that your Will is valid for a number of reasons – not least of all to avoid legal battles after your death.
Make a list of assets for your Will
When making a list of assets for your Will, it is helpful to start by making a list of all your assets and debts. This should include any:
- Assets in your name
- Assets that you own with someone else
- Assets that might come to you in the future
- Debts or mortgages
- Business interests and partnerships
If you own property with someone else, it is important to know whether you hold the asset as joint tenants or tenants in common. These are two separate legal terms which refer to how property is owned and dealt with on the death of one of the owners.
In most cases, where you purchase property with someone, you are joint tenants which means that upon your death your share of the property automatically goes to the other joint tenant. In other cases you will be tenants in common, which means that you can deal with your share of the asset in your Will. For real property, you can find the information about how the property is owned on your Certificate of Title.
Assets in your Will
Examples of assets that you can include:
Now that you’ve made your list of assets and debts, you can begin to make inclusions in your Will. You can include the following in your Will:
- Assets that you own in your name only
- Assets that you own as a tenant in common
Examples of assets that you cannot include:
There are some items that you cannot include in your Will. These include:
- Compensation payments that you receive
- Any share of assets owned as a joint tenant
- Assets which are held in trust. You cannot leave this because it does not belong to you. Much like your neighbours car, for example.
- Some superannuation
What you may be able to include in your list of assets for your Will:
In some cases you may need to include the following list of assets in your Will. If you have any of these assets, it is important to seek legal advice before inclusion to make sure that your Will does not miss any details or open anything to interpretation:
- Overseas property
- Assets with a mortgage or security on them
- Life insurances
- Business assets – depending on the structure
- Superannuation benefits
- Shares in a company or Family Trusts
What to consider when allocating an asset to someone
When you are drafting your Will, you can make a specific gift of something to someone, or you can leave a portion of your entire estate. How you structure your Will is entirely up to you. When allocating certain assets, it is worth considering the following:
- If gifting someone a particular asset, do you believe you will still own the asset upon your death?
- Do you have debts which will need to be covered by an item?
- If you are leaving a house or property to someone, is it going to them debt-free or will they be responsible for paying the remaining mortgage?
- Do any of your beneficiaries have specific needs or disabilities, and if so, will they need particular care after your death?
While none of these factors necessarily preclude you from leaving an asset to someone provided you are able to do so, it is worth considering.
Contact Rose Lawyers for assistance with your Will
You can trust our Will and Estate lawyers in Melbourne for comprehensive advice and straightforward service when making your Will. Asset division can be complicated, but with us by your side, the process will be straightforward. Find out how we can help you with your Will.
Call us today on 03 9878 5222 for a friendly and professional free consultation.
Julie is an admitted Solicitor in the Supreme Court of Victoria. She has a range of experience in Civil Litigation, Commercial Law, Family Law, Taxation...
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