7 key assets not covered by your Will in Australia (2025 guide)

So, you have taken the responsible step of preparing a Will to ensure your family is looked after when you are gone. That is a significant step, and it places you ahead of nearly half the country. However, that Will may not actually control some of your most significant assets.

It surprises many people, but it is true. In Australia, a number of common assets are governed by legal structures that operate completely outside of your Will. This means that no matter how carefully you have set out your wishes, these assets could be passed on in ways you never intended. It is a gap that can create considerable confusion and stress for your loved ones during an already difficult time.

This guide is intended to clarify these issues. We will walk through the 7 most common assets not covered by a Will in Australia, explain why they are treated differently, and provide practical steps to ensure your entire legacy is protected.

What are non-estate assets?

To understand this properly, we need to make a simple but critical distinction. Your Will can only control your "estate assets." Think of these as anything you own in your name and your name alone, such as a personal bank account, a car registered solely to you, or your specific share of a property owned as "tenants in common" (we will come to that shortly).

Then you have "non-estate assets." These are the assets that pass to someone automatically because of other rules already in place, such as joint ownership arrangements or direct beneficiary nominations. They completely bypass your Will and go straight to the person you have designated elsewhere.

Understanding this distinction is the key to proper estate planning. It is how you ensure there are no unwelcome surprises and that your family is cared for exactly as you intended.

How we selected the assets for this list

To keep this guide practical, we have focused on assets that meet a few specific criteria. This is not just about legal theory; it is about the real-world things that make up most people's wealth in Australia.

• They are common: These are assets that a large number of us own, from the family home to our super fund.

• They have their own rules: Their distribution is decided by specific laws that legally override whatever you have written in your Will.

• They require your attention: Each one requires you to do something specific, outside of just writing your Will, to control who receives it.

Assets not covered by your Will: A quick summary

For those who prefer a concise overview, here is a snapshot of the assets we are about to explore.

The 7 assets your Will doesn't cover in Australia

Alright, let us proceed to the details. Here are the seven key assets that your Will does not control and what you should do about them.

1. Jointly owned property

This is likely the most common and misunderstood item on the list. When you own property with someone else, such as a house or even a joint bank account, the manner of ownership is critical.

There is a significant difference between being "Joint Tenants" and "Tenants in Common."

• Joint Tenants: This arrangement includes a significant feature known as the "right of survivorship." It means that when one owner passes away, their share automatically transfers to the surviving joint tenant. It does not matter what your Will says. This is how most married or de facto couples own their home.

• Tenants in Common: Here, each owner has a distinct, separate share (it could be 50/50, 70/30, as agreed). This share is treated like any other personal asset, meaning you can leave it to whomever you wish in your Will.

What you need to do: First, locate the certificate of title for your properties and check how they are held. If you are a joint tenant but want your share to go to someone else (for example, your children from a previous marriage), you should obtain legal advice on "severing the joint tenancy" to change it to tenants in common.

Pro Tip: Do not simply assume the family home will be handled by your Will. Always check the title deed. It is a simple five-minute task that can prevent a world of confusion later on.

2. Superannuation

For many Australians, their super is one of their largest nest eggs, yet it almost always sits outside the control of a Will.

Here is why: your super is legally held in a trust. This means the fund's trustee (not you) technically owns the money on your behalf. When you die, the trustee has the final say on who receives your death benefit. They are guided by superannuation law, which usually points them towards your dependents (such as a spouse or child). Your Will is merely a reference they might consider.

What you need to do: If you wish to retain control, you need to complete a Binding Death Benefit Nomination (BDBN) with your super fund. This is a formal document that instructs the trustee exactly who to pay your super to, without discretion. Some BDBNs expire every three years, while others are non-lapsing and remain in place until you change them.

When you use a platform like Willfully to create your Will, we make a point of reminding you about these additional steps. Our process prompts you to consider matters such as your super beneficiaries so you can build a complete estate plan with no gaps.

3. Life insurance policies

Life insurance operates in a very similar way to super.

The policy is a contract between you and the insurance company. If you have named a specific beneficiary on that policy, the payout goes directly to them. The money never even enters your estate, so your Will has no effect in this regard. This facilitates prompt payment to loved ones, but only if your nomination is up to date.

What you need to do: Log in to your insurer's website or contact them to double-check your beneficiary nomination. It is particularly important to do this after major life events such as marriage, divorce, or the birth of a child, to ensure the correct person is listed.

4. Assets held in trusts

If you have assets such as property or shares held in a family or discretionary trust, this section is relevant to you.

The trust is a separate legal entity that owns the assets. You do not own them personally, even if you are a beneficiary or the person directing decisions. The trust deed is the governing instrument that explains how the trust’s assets are managed and distributed by the trustee. Your Will simply cannot override it.

There is one nuance, however. If you have loaned money to the trust, that loan is an asset that you do personally own. Your Will can determine who inherits the right to be repaid that loan.

What you need to do: Locate your trust deed and review it carefully. Pay close attention to the roles of Trustee and Appointor. The Appointor is a highly influential position, as they can usually appoint and remove the trustee. In your Will, you can pass on the role of Appointor to someone you trust to manage matters appropriately.

5. Company assets

If you run a private company, it is easy to assume the business's assets are your own. Legally, the position is different.

Just like a trust, a company is its own legal person. The assets, whether a factory, company vehicles, or cash in the bank, belong to the company, not to you as an individual.

So, what role does your Will play? Your Will controls what happens to your shares in the company. These shares are your personal asset and represent your ownership stake, and you can certainly leave them to your beneficiaries.

What you need to do: Effective business succession planning has two components. You need a Will to deal with your shares, and you also usually need a Shareholders' Agreement. This document can specify what happens if a shareholder passes away, such as giving the remaining shareholders the first option to buy the shares from your estate. This helps the business continue operating without disruption.

6. Debts and liabilities

Although debts are not assets, they have a substantial impact on what your beneficiaries actually receive.

Obligations such as mortgages, credit card debt, and personal loans do not simply disappear. Your executor has a legal duty to use the assets in your estate to pay off all your debts before anyone receives any part of their inheritance.

This is critical because a significant, unexpected debt can reduce or even eliminate the gifts you intended to leave. Your beneficiaries do not "inherit" the debt itself, but the debt is paid from what would otherwise have been their inheritance.

What you need to do: Keep a clear, up-to-date list of your assets and liabilities. This makes your executor's task far easier and gives everyone a realistic picture of the net value of your estate. The asset and liability summary you can create on the Willfully platform is a suitable place to keep this information organised.

7. Your body

This may seem an unusual topic, but it is a legal fact. In Australia, a person's body is not considered property. Because of this, it cannot be "owned" or "gifted" in a Will.

What your Will can do is state your preferences for burial, cremation, or organ donation. While these wishes are not legally binding, they provide your executor with very strong guidance and are almost always followed. The final legal decision, however, rests with your executor.

What you need to do: The best way to ensure your wishes are respected is to speak about them openly with your executor and close family, as well as recording them in your Will. A considered conversation now can prevent considerable uncertainty later.

This video details some of the most common and costly estate planning mistakes that Australians make.

Creating a comprehensive estate plan

As you can see, a Will is the foundation of a good estate plan, but it is not the entire structure. A truly effective plan looks at both your estate and non-estate assets to ensure everything is covered.

Here is a quick checklist to help you get everything in order:

• Check your ownership structures: Find the title deeds for your property and any business agreements to see exactly how things are set up.

• Update your nominations: Log in to your super and life insurance accounts online and make sure your nominated beneficiaries are correct.

• Understand your entities: If you have a trust or a company, read through the deed or shareholder agreement so you know the rules.

• Write everything down: Keeping a clear record of what you own and what you owe will be a huge help for your executor down the line.

Real peace of mind comes from knowing your whole legacy is in order. Creating your Will should be the step that initiates this broader review. The process at Willfully is designed to be simple and clear, using plain English to cut through legal jargon. This gives you the confidence to manage every piece of your estate. Plus, with 12 months of free edits included, you can easily update your plan as life changes, without the stress of substantial legal bills.

Don't leave your legacy to chance

If there is one key takeaway from all this, it is that many of your most valuable assets might be outside the control of your Will. But with proactive planning, you can ensure everything is properly arranged.

By taking the time to review your joint assets, check your super and insurance policies, and understand your trusts, you can ensure your estate is handled exactly as you want, leaving your loved ones with clarity, not confusion.

Take the first step towards complete peace of mind by creating your legally-binding, lawyer-reviewed Will online in under 20 minutes. Get started with Willfully today.

Frequently Asked Questions

Why are some of my most valuable assets not covered by a will in Australia?

These assets are typically governed by separate legal structures, such as joint ownership rules, trust deeds, or direct beneficiary nominations with super funds and insurers. These specific arrangements legally override the general instructions in your Will, meaning they pass outside your estate.

What's the main risk if I don't plan for assets not covered by a will in Australia?

The primary risk is that these assets may not go to the people you intend, leading to unintended beneficiaries or significant delays and stress for your loved ones. Without proper planning, your wishes expressed in your Will will not apply to these specific assets.

How can I make sure my superannuation goes to my chosen beneficiaries?

To control your superannuation, you need to complete a Binding Death Benefit Nomination (BDBN) directly with your super fund. This legally binding document instructs the trustee exactly who should receive your super death benefit, bypassing your Will.

Is jointly owned property always considered an asset not covered by a will in Australia?

It depends on how the property is owned. If it is held as "Joint Tenants," the right of survivorship means it automatically passes to the surviving owner, making it one of the assets not covered by your Will. However, if owned as "Tenants in Common," your share can be distributed via your Will.

What's the first step I should take to address assets not covered by a will in Australia?

Start by identifying how your major assets are structured. Check property title deeds, review your super and life insurance beneficiary nominations, and understand any trust or company deeds you are involved with. This initial review helps you see where adjustments are needed.

Can I name my estate as the beneficiary for any of these assets not covered by a will in Australia?

Yes, for some assets like superannuation or life insurance, you can often nominate "Your Estate" as the beneficiary. This brings the funds into your estate, allowing your Will to then dictate how they are distributed according to your wishes. However, joint property will still bypass the Will.

How often should I review my arrangements for assets not covered by a will in Australia?

It is highly recommended to review these arrangements whenever you have significant life changes, such as marriage, divorce, birth of children, or major changes in your financial situation. Ideally, a review every 3-5 years, or whenever you update your Will, is good practice.