Bowen Buchbinder Vilensky

What Do You Mean It’s Not Mine?

This one (2)

By Laura Di Cristofaro, Solicitor at Bowen Buchbinder Vilensky Lawyers

25 February 2016

With the increase in sophisticated financial plans and the heightened awareness of the benefits of asset protection strategies, what seems like a simple question actually requires careful consideration – what do you own?

This question is important when considering your estate planning objectives. Is it your vision for your children to take over the family business? Have you taken out life insurance to ensure your spouse is looked after? Who will take control of your family trust after your death? When you own, or have an interest in, what are commonly referred to as ‘Non-Estate Assets’, additional planning is required…

An ‘Estate Asset’ is an asset owned personally in your name.  You may transfer ownership of Estate Assets in your Will to your preferred beneficiaries.  An Estate Asset includes any asset that you own solely in your name or, if with someone else, as a tenant in common, such as:

  • real estate;
  • personal belongings;
  • shares;
  • cash investments; or
  • car

If you do not own an asset in your personal capacity (i.e. in your name) then that asset is a ‘Non-Estate Asset’. A Non-Estate Asset includes:

  • assets owned with someone else as a joint tenant;
  • assets owned by a Trust;
  • superannuation (subject to binding nominations and trustee discretion);
  • life insurance proceeds; and
  • assets owned by a company.

It is not possible to transfer ownership of a Non-Estate Asset by your Will as technically it is not yours to give away.  For example, company assets belong to all of the shareholders of a company, trust assets belong to all beneficiaries of that trust and superannuation does not automatically form part of your estate.

So, how do you deal with Non-Estate Assets and achieve your estate planning objectives? It is crucial to seek appropriate legal and financial advice with respect to succession of these entities and distribution of these assets. By discussing your objectives with an experienced estate planning lawyer, you can work together to create a strategy, in combination with the appropriate financial advice, to reach your goals and ensure that your legacy is secured and passed on to those who you would like to receive it.

If you would like to discuss your estate planning objectives, please contact Laura Di Cristofaro of our office at ldicristofaro@bbvlegal.com.au.

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