Where there’s a Will, there’s a way: Property distribution

When making your Will it is important to consider how your beneficiaries receive what you intend to give them.

When making your Will it is important to consider how your beneficiaries receive what you intend to give them. Knowing what to do with your property and assets can be difficult, particularly if you have multiple beneficiaries to whom you’d like to leave your assets. Ensuring you know how to distribute your property or assets can give you peace of mind.

How do I distribute my property?

There are many options available to testators when deciding how to distribute their property to beneficiaries under their Will. If you have a special item that you wish to distribute to someone, or if you want to give someone a set amount of money, then that distribution is known as a specific gift under the Will.

If you have a child under the age of 18 at the time of your death, then any gift to him or her will not be received until they turn 18 (and would instead be held on trust for them pending their 18th birthday – or such other date nominated in the Will). You may wish to include in your Will a testamentary trust for your child or for spouse. This is where property is put into a trust for the benefit of a person, without them receiving the property outright. You may wish to specify that the trustee of that trust (who may be the executor, or someone else) has the power to invest the money held on trust, and distribute it on a regular basis to maximise its return and value.

  • Any property or assets belonging to the person making a Will can be included – even property that was not owned when the Will itself was drawn up. However, in such a scenario, the person must be entitled to the property at the time of their death.
  • Properties that cannot be included in a Will are partnerships, companies or properties in which the person making a Will is also a trustee.
  • In most cases, a person making a Will should be able to list the assets that they own, and if not, the Courts may be petitioned to question the competence of the Will maker.

How can a solicitor help?

It is wise to involve your solicitor whenever you want to make changes to your Will or draw up a new one. Your solicitor can:

  • Ensure your Will is valid and that it is properly drawn up, signed and witnessed;
  • Ensure you’ve expressed your wishes in the best possible way, so that little is left to chance;
  • Advise you on how to provide for your spouse or de facto partner, children and other dependents. They’ll also let you know about your rights and obligations to former partners and other family members;
  • Advise you on tax planning, including the best way to minimise any potential capital gains tax from the gifts you’re making;
  • Give you a thorough understanding of the role of your executor and trustee and help you choose appropriate ones;
  • Overall, advise you on the best way to arrange your estate; and
  • Store your Will in a safe place.

For more information on Wills and property distribution, please contact Angela Catanzariti, Lynda Lim or Steven Dangerfield at Dangerfield Exley Lawyers

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