A will is a legal document in which a person chooses the controller of his or her estate (by selecting an executor) and sets out how and to whom his or her assets are to be distributed after death. If a person has young children, then that person can nominate a guardian in their will to ensure the children are properly cared for.

A deceased estate is essentially a trust, the trustee of which is the person’s nominated executor and the beneficiaries of which are the nominated beneficiaries under the will. The manner in which the deceased estate is to be administered and the powers that the executors have to do so are set out in the terms of the will.

A will may not cover all the assets owned or controlled by the deceased.

Wills cover:

  • all assets owned personally;
  • shares in a company;
  • share of any asset owned as tenants-in-common;
  • any superannuation death benefit or life insurance policy proceeds paid to the estate;
  • the interest in any partnership assets, unless agreed otherwise;
  • the right to recover any funds owed; and
  • any rights held under any contract or agreement.

Wills do not cover:

  • assets owned as a joint tenant (these pass automatically to the other joint tenant(s));
  • assets held in a trust (the trust deed governs what happens to these assets);
  • assets owned by a company (only the company can deal with its assets); or
  • superannuation death benefits or life insurance policy proceeds paid directly to a beneficiary.