Many people assume that once they sign a Will, all their assets are locked in and will be distributed exactly as intended. The reality is a little complex.
A Will is a powerful document, yet it does not control every asset you own and it cannot shield your estate from certain risks.
Understanding these distinctions is essential to ensure that your estate plan reflects your true intentions.
What your Will controls
Your Wills and estate planning applies to assets held in your sole name with no special arrangements attached to them. These are often called “estate assets” and typically include:
- Real property (land and houses) held in your sole name or as tenants-in-common with another;
- Bank accounts held in your sole name;
- Shares and investments made in your sole name;
- Personal property like vehicles, jewellery, and household contents; and
- Business interests held personally or solely by you.
These assets form your estate and will be distributed according to the terms of your Will. If you do not have a valid Will, the rules of intestacy in Western Australia will determine how your assets will pass.
What your Will does not control
Several assets fall outside your Will entirely. These include:
Jointly owned property
If you own property as joint tenants with another person (common for married couples), that property automatically passes to the surviving joint tenant upon your passing. Your interest does not form part of your estate and your Will cannot redirect it. This applies to real estate, bank accounts, and shares held in joint names.
Superannuation
Superannuation is not an estate asset. It is held by the trustee of your superannuation fund and is distributed according to the fund’s rules and any valid binding death benefit nomination you have made. Your Will cannot override a valid binding nomination.
Life insurance policies
If your life insurance policy names a specific beneficiary, the insurer will pay them directly and the insurance policy will not form part of your estate generally. Only if the policy is payable to your “estate” or has no nominated beneficiary will it may become an estate asset.
Assets held in trust
If you hold assets as a trustee of a trust (including a family trust or self-managed super fund), those assets are not owned by you personally. They belong to the trust and pass according to the trust deed, not your Will.
Assets with binding nominations
Some investment accounts and financial products allow you to nominate beneficiaries. These nominations operate outside your Will.
The debts
Your Will cannot protect your estate from creditors. Any money you owe at the time of your death must be paid from your estate before any distribution is made to the beneficiaries. This includes:
- Mortgages and secured loans;
- Credit card debts;
- Personal loans;
- Tax debts; and
- Funeral and estate administration expenses
If the estate does not have sufficient cash to pay these debts, the executor may need to sell assets (including the family home, if necessary) to meet these obligations.
Family Provision Claims
Even the most competently drafted Will cannot completely prevent a challenge. Under the Family Provision Act 1972 (WA), certain eligible people may apply to the Supreme Court of Western Australia for further provision if they believe the Will does not make proper and adequate provision for them. Eligible applicants include spouses, children and some other dependants.
The Supreme Court has the discretion to weigh the claim against several factors and determine whether a Will must be varied to make provision for the claimant.
Interestingly, our 2025 Inheritance State of Play Report indicates that 60% of the families in Western Australia anticipate a dispute over their Will.
How to protect assets outside your Will
Because your Will does not cover everything you need complementary strategies. These may include:
Review your superannuation nominations
Make sure you have a current binding death benefit nomination in place that reflects your wishes. Most binding nominations typically lapse every three years, so regular reviews are important. Consider adding reminders to your digital calendars.
You must determine whether you want your super paid to your estate (where your Will directs it) or directly to specific beneficiaries.
Consider your property ownership structure
If you own property as joint tenants, it will automatically pass to the surviving owner. If you want that property to form part of your estate and be distributed according to your Will, you must consider whether you must hold it as tenants in common instead.
You must seek tailored legal advice before you make such a change as it may have tax and asset protection consequences.
Review insurance beneficiary nominations
Review all your life insurance policies and update beneficiary nominations as needed.
You must determine whether you want your life insurance paid to your estate (where your Will directs it) or directly to specific beneficiaries.
Keep records of debts and assets
This is a more practical step. Make sure your executor knows what you own and what you owe. A comprehensive list of assets, debts, and important documents can save significant time and expense during estate administration.
Consider protective structures
Depending on your circumstances, strategies like testamentary trusts (trusts created by your Will) can offer protection for beneficiaries from relationship breakdown, bankruptcy, and poor financial management. These don’t protect your estate from creditors, but they can protect what beneficiaries receive.
- Ensuring your Will deals with all estate assets;
- Managing super joint property and insurance so they support your overall intentions;
- Considering protective strategies for beneficiaries; and
- Giving your executors the information they need to administer your estate efficiently.
This might involve restructuring property, updating superannuation nominations, creating testamentary trusts or implementing other protective and tailored strategies. There is no one size fits all approach, and the right approach depends on your life circumstances and your goals.
Take control of your estate plan
At Solomon Hollett Lawyers, we take a comprehensive approach to estate planning. We look beyond the Will to consider how every asset will pass and identify any gaps or risks. We then help you build a plan that reflects your wishes and protects the people you care about.
If you haven’t reviewed your estate plan recently, or if you’ve never taken a comprehensive approach to it, now is the right time to revisit how your beneficiaries will receive their inheritance.
If it has been some time since you reviewed your estate plan or if you have never looked at your full asset structure now is the ideal time to ensure everything is aligned. Our estate planning team can provide a tailored proposal to help secure your assets and carry out your intentions with confidence.
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