Disclaimer: This guide is for educational purposes only and does not constitute legal advice. We recommend consulting a qualified legal professional for advice specific to your situation.
Quick Answer
Your will only controls assets you own in your sole name. It doesn't cover superannuation, jointly owned property, trust assets, or accounts with nominated beneficiaries. These assets pass according to their own rules — which means they can go to the wrong person if you haven't set them up correctly.
Overview
Most Australians assume their will controls everything they own. It doesn't.
Superannuation alone makes up more than half of many estates — and it doesn’t automatically follow your will. Joint bank accounts pass to the surviving owner, regardless of what your will says. Trust assets, business interests, and life insurance policies all operate outside your will.
If you only focus on your will, you’re planning for less than half your estate.
This guide covers what your will doesn’t control, what happens to those assets instead, and how to make sure your wishes are followed.
Who this is for
- Anyone with superannuation (which is almost every Australian worker)
- People who own property jointly with someone else
- Anyone with life insurance, joint bank accounts, or trust assets
- People who want to ensure their entire estate — not just their will — reflects their wishes
Superannuation and life insurance
Australian Law
Superannuation is not an asset of your estate. It's held in trust by your super fund and is governed by superannuation law, not estate law.
Why your will doesn’t control super
Superannuation is owned by the trustee of your super fund — not by you personally. When you die, the trustee decides who receives your super balance, based on:
- Binding death benefit nominations (if you have one)
- Non-binding nominations (which the trustee can ignore)
- Trustee discretion (if you have no nomination)
Your will has no legal effect on your super unless the trustee pays it to your estate (which they’re not required to do).
What happens without a binding nomination
If you die without a binding death benefit nomination:
- The super fund trustee decides who gets your super
- They can only pay it to your dependants or your legal personal representative (your estate)
- Dependants include: spouse, de facto partner, children, anyone financially dependent on you, or someone in an interdependency relationship with you
- Your super might not go where you intended — even if your will says otherwise
Example: You leave everything to your adult son in your will. But your super fund pays your balance to your estranged spouse (who qualifies as a dependant under super law). Your son gets nothing from the super — the largest asset in your estate.
How to control super: Binding death benefit nominations
A binding death benefit nomination is a formal instruction to your super fund that’s legally binding on the trustee.
Requirements for a Valid Binding Nomination
Check Your Fund's Rules
Some binding nominations expire (typically after 3 years) while others are non-lapsing. If yours has lapsed, your super fund treats it as non-binding—meaning the trustee can ignore it. Check your fund's Product Disclosure Statement or contact them to understand which type you have.
Life insurance
Life insurance policies work the same way:
- If held inside your super fund, they’re controlled by your binding nomination
- If held outside super, they follow the beneficiary nomination on the policy
- Your will only controls the payout if it’s paid to “the estate” or if there’s no beneficiary nominated
Joint assets
The joint tenancy trap
In Australia, property and bank accounts can be owned in two ways:
| Ownership Type | What Happens When You Die |
|---|---|
| Joint tenancy | The asset automatically passes to the surviving owner(s) — your will is irrelevant |
| Tenants in common | Your share forms part of your estate and passes according to your will |
Most married couples own their home as joint tenants. This means when one partner dies, the property automatically goes to the surviving partner — regardless of what the will says.
When joint tenancy creates problems
Scenario 1: Blended families
You’re in a second marriage. You own your home jointly with your new spouse. You want your adult children from your first marriage to inherit your share of the property.
What happens: When you die, your spouse automatically gets 100% of the property (joint tenancy). Your children get nothing. Your will is irrelevant.
Solution: Convert to tenants in common so your share can pass according to your will.
Scenario 2: Unequal contributions
You and your sibling buy an investment property together. You contribute 80%, they contribute 20%. You own it as joint tenants.
What happens: When you die, your sibling automatically owns 100% of the property — even though you paid for 80% of it.
Solution: Hold as tenants in common with ownership percentages that reflect contributions.
How to check and change ownership
- Check your property title through your state’s land registry
- To convert from joint tenancy to tenants in common, complete a “severance of joint tenancy” form
- This usually requires consent from all owners
- Speak to a conveyancer or solicitor to ensure it’s done correctly
Bank Accounts Too
Joint bank accounts also operate under joint tenancy. When one owner dies, the account automatically goes to the survivor — even if the will says otherwise.
Assets held in trusts
If you’re a beneficiary of a family trust, discretionary trust, or testamentary trust, those assets do not form part of your estate.
Why trusts sit outside your will
- Trust assets are owned by the trustee, not by you
- You may have a right to benefit from the trust, but you don’t own the assets
- Your will can’t direct how trust assets are distributed — the trust deed controls that
What you can control
- If you’re the appointor of a trust, you can nominate a successor appointor in your will
- If you’re the trustee, your will can nominate who takes over that role
- But you can’t control who benefits from the trust after you die — that’s governed by the trust deed
Review Trust Deeds
If you're involved in a family trust, review the trust deed with your solicitor to understand what happens when you die and whether any changes are needed.
Digital assets and cryptocurrency
Your will can give your executor authority to access digital assets — but it doesn’t automatically grant them the legal right or technical ability to do so.
What counts as digital assets
- Email accounts, social media profiles
- Online banking and investment accounts
- Cloud storage (Google Drive, Dropbox, iCloud)
- Cryptocurrency wallets and exchanges
- Digital photos, videos, and documents
- Domain names and websites
- NFTs and digital collectibles
- Loyalty points and airline miles
The problem
- Most platforms prohibit account transfers and delete accounts when notified of death
- Without passwords or recovery keys, your executor may be locked out forever
- Cryptocurrency in self-custody wallets is irrecoverable without private keys
- Some platforms (like Facebook) allow you to nominate a “legacy contact” — but most don’t
How to plan for digital assets
- Create a digital asset inventory — list all accounts, platforms, and crypto holdings
- Store credentials securely — use a password manager with emergency access, or leave sealed instructions with your solicitor
- Include authority in your will — specifically authorise your executor to access, manage, and close digital accounts
- Back up critical data — download important files and photos to physical storage
- Set up legacy contacts where available (Facebook, Google)
Cryptocurrency Can Be Lost Forever
If you hold cryptocurrency in a self-custody wallet and your executor doesn't have your private keys or seed phrase, those funds are permanently inaccessible. There is no customer service number to call.
Business interests and partnership agreements
If you own a business or are a partner in a partnership, your will is only part of the picture.
Partnership agreements
If you’re in a partnership, the partnership agreement determines what happens to your share when you die — not your will.
Common provisions include:
- Automatic transfer to surviving partners
- Right of first refusal for partners to buy out your estate
- Forced sale clauses requiring your share to be sold
Your will can’t override the partnership agreement.
Company shares with shareholder agreements
If your company has a shareholders’ agreement, it likely includes:
- Pre-emptive rights (other shareholders can buy your shares before outsiders)
- Valuation formulas (setting the price your estate receives)
- Restrictions on transfers
Your will can leave your shares to someone — but the shareholder agreement might prevent them from actually joining the company.
What to review
- Partnership agreements
- Shareholder agreements
- Buy-sell agreements
- Business succession plans
- Key person insurance policies
Ensure these documents align with your estate planning goals.
Items with designated beneficiaries
Several financial products allow you to nominate beneficiaries directly — meaning they bypass your will.
Common examples in Australia
| Asset Type | How It Passes |
|---|---|
| Superannuation | Binding nomination or trustee discretion |
| Life insurance (outside super) | Beneficiary nomination or estate |
| Some bank accounts | Payable-on-death nominations (rare in Australia) |
| Investment bonds | Beneficiary nomination |
If you’ve nominated a beneficiary, that person receives the asset directly — your will has no effect.
Review your nominations
- Check who you’ve nominated on all policies and accounts
- Ensure nominations are up to date (especially after divorce, remarriage, or new children)
- Decide whether assets should go to individuals or your estate
- Consider tax implications (super paid to dependants vs non-dependants)
Overseas assets
If you own property, bank accounts, or investments overseas, your Australian will may not be recognised in that country.
The problem
- Each country has its own estate laws
- Some countries require local probate or equivalent processes
- Your Australian executor may have no authority to act overseas
- Delays, legal fees, and complications multiply
Solutions
- Make a separate will in each country where you own significant assets
- Ensure wills don’t conflict — your Australian will should exclude overseas assets, and vice versa
- Appoint a local executor in each jurisdiction or use an international law firm
- Consider restructuring — hold overseas assets through an Australian trust or company instead
Seek Specialist Advice
If you own property or significant assets overseas, see a solicitor experienced in international estate planning. DIY approaches rarely work across borders.
Wishes vs legally binding instructions
Some things you might put in your will are legally binding. Others are simply wishes that your executor and family can ignore.
Legally binding (must be followed)
- Distribution of assets you own in your sole name
- Appointment of executor
- Appointment of guardian for minor children (subject to court approval)
- Creation of testamentary trusts
Wishes only (can be ignored)
- Funeral arrangements — your executor can hold a different funeral
- Burial vs cremation — not legally binding in most states
- Organ donation — family can override your wishes
- Pet care — you can leave money for a pet’s care, but can’t force someone to take them
- Requests to family members — e.g., “I hope my daughter keeps the family home”
How to make wishes more likely to be followed
- Write a separate letter of wishes to accompany your will
- Discuss your wishes with your executor and family while you’re alive
- Register as an organ donor on the Australian Organ Donor Register
- Prepay funeral arrangements to ensure your preferences are followed
- Use incentives — e.g., leave money to a friend conditional on them caring for your pet
Organ Donation in Australia
Registering on the Australian Organ Donor Register provides evidence of your wishes, but your family still has the final say. Discussing your decision with them is the best way to ensure it's honoured.
Real-world consequences
Real Case: The Super Fund That Didn't Follow the Will
A Queensland man left his entire estate — including what he thought was his super — to his adult children in his will. He had no binding death benefit nomination. When he died, the super fund trustee paid his $450,000 balance to his estranged ex-wife (they'd never formally divorced). She qualified as a spouse under superannuation law. The children received nothing from the super and spent years in court trying to challenge the payment. The will was irrelevant.
This case illustrates why your will is only part of the picture. Super, joint assets, and trust holdings all operate under their own rules.
Common mistakes
People assume their will covers everything. Here are the most common oversights:
1. No binding death benefit nomination for super Your super is likely your largest asset. Without a binding nomination, you don’t control where it goes.
2. Joint tenancy when you wanted your share to go elsewhere If you own property or accounts jointly, check whether joint tenancy is still appropriate for your situation.
3. Forgetting to update beneficiary nominations after divorce or remarriage An old nomination can send your super or life insurance to an ex-partner.
4. Assuming your executor can access your cryptocurrency Without private keys, crypto is lost forever.
5. Not reviewing partnership or shareholder agreements These documents can override your will and prevent your family from inheriting your business.
6. Relying on your will for funeral wishes By the time your will is read, your funeral may already be over.
Key Takeaway
Your will is essential — but it only controls assets in your sole name. Superannuation, joint property, trust assets, and beneficiary-nominated accounts all operate outside your will. A complete estate plan addresses all of these, not just the will.
Next steps
Audit Your Super
Log into your super fund(s) and check your death benefit nomination. If you don't have a binding nomination, complete one today. If your fund uses lapsing nominations, set a reminder to renew before it expires.
Check Property Ownership
Confirm whether you own property as joint tenants or tenants in common. If it's joint tenancy, decide if that still reflects your wishes.
Review Beneficiary Nominations
Check life insurance policies, investment bonds, and any other accounts with beneficiary nominations. Update them if needed.
Create a Digital Asset Plan
List your digital accounts and crypto holdings. Store credentials securely and give your executor access instructions.
Get Professional Advice
If you have trust assets, business interests, or overseas property, see a solicitor to ensure all your estate planning documents work together.
Learn more
Related Guides
Related Questions
Dictionary
- Superannuation
- Joint tenancy
- Tenants in common
- Binding death benefit nomination
- Estate
- Executor
Planning Tools
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