Mr Huang's will left everything equally to his wife and his daughter from a previous marriage. After he died, the daughter discovered that the family home was held with his wife as joint tenants and passed straight to her; his super had also been nominated to his wife; and the family trust's assets stayed under the control of the person in charge of the trust. In the end, only a small bank account actually passed under the will.
The direct answer: a will only deals with property the deceased owned in their own name (the 'estate'). Property and accounts held as joint tenants, super, life insurance with a nominated beneficiary, and assets owned by a company or trust generally do not pass under the will. These assets must be considered together when making a will.
At a glance
- Property held as joint tenants passes automatically to the surviving owner when one owner dies, and a will cannot change this.
- A share held as tenants in common forms part of the estate and can be left to others by will.
- Super and most life insurance are paid according to nominations or fund rules, not automatically under the will.
- Company assets belong to the company; what the deceased owned are shares, and the shares form part of the estate.
- Family trust assets are not part of the personal estate; control depends on arrangements such as the appointor named in the trust deed.
其他不经遗嘱的资产
联权共有的房产, 联名账户和退休金同样不经过遗嘱分配, 相关规则请参阅“Joint Ownership or Your Will? How Property and Shares Pass on Death” and Your retirement pension does not automatically belong to your inheritance. 本文着重讨论公司和家族信托名下的资产.
Company and family trust assets
Many Chinese families run businesses through companies or hold investment properties through family trusts. A company's property, cash and business belong to the company itself. What is in the deceased's estate is their shareholding and any money the company owes them (shareholder loans), which can be dealt with by will. However, who may continue as director and how shares can be transferred also depend on the company constitution and any shareholders' agreement.
A family trust's assets are held by the trustee and were never personal property, so a will cannot distribute them directly. What really matters is control: the appointor named in the trust deed usually has power to replace the trustee, and if the trustee is a company, you also need to consider who holds the shares in that company. If successors to these roles are not arranged, there may be a gap in control, or family members may compete for control, after death.
In addition, there are often loan accounts between the deceased and a company or trust, such as money the deceased lent to the company or trust, or trust income distributed to them but not yet paid. These amounts may form part of the estate, and the executor needs up-to-date financial statements from the accountant to confirm them.
Effect on claims against the estate
Unlike New South Wales, Victoria currently has no notional estate regime, so family provision claims can generally only be made against property in the estate. Assets outside the estate are therefore usually not affected by such claims in Victoria. But this does not mean assets can be moved freely: transfers can trigger stamp duty and capital gains tax, may be challenged on grounds such as undue influence, and other states or overseas laws may take a different approach.
Whole-of-estate planning checklist
- List every asset and how it is held: personally, as joint tenants, as tenants in common, or by a company or trust.
- Check the beneficiary nomination on every super account and insurance policy.
- Review the family trust deed and arrange successors to the appointor and trustee roles.
- Check the company constitution and shareholders' agreement for share transfer and director succession arrangements.
- Make sure the will is consistent with the arrangements for assets outside the estate, so they do not contradict each other.
- Check the local succession rules separately for any overseas assets.
Frequently asked questions
I want to leave my house to my children, but I own it with my spouse as joint tenants. What can I do?
If you die before your spouse, the house passes directly to your spouse and your will cannot change that. To leave your share under your will, consider severing the joint tenancy, but first assess the effect on your spouse and on tax.
Does a joint bank account always go to the survivor?
Generally yes, but disputes can arise if there is evidence the account was only for convenience (for example, a child helping an elderly parent manage money) rather than an intended gift. It is best to keep a written record of the intention.
What happens to my family trust when I die?
The trust continues and is managed by the trustee under the trust deed. The key is succession of the appointor and trustee roles, which should be planned in the trust deed and the will together.
Can my will leave the company's property to one of my children?
Not directly, because the property belongs to the company. Your will can deal with your shares in the company and any shareholder loans, combined with arrangements in the company documents.
Chua Tan Associates has practised in Melbourne since 1990, providing wills, powers of attorney, probate and estate administration services in Mandarin, Cantonese and English. Justin Chua is a STEP Affiliate and a nationally accredited mediator, and the firm has a notary public who can notarise documents for use overseas. For help, call 03 9602 3988 or contact us online. We can meet at our Melbourne CBD office or by video.
This page provides general information only and is not legal advice.
重要提示: 本文仅为一般资讯, 不得作为依据. 本文并非法律, 税务或财务意见, 没有考虑您的个人情况, 亦可能未反映发布后的法律变化. 其他国家的法律也可能适用. 请勿仅依据本文采取或不采取任何行动. 阅读本文或与我们联系, 并不构成律师与客户关系. 如需针对您情况的意见, 请预约咨询.
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