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An estate administration/interpretation issue: Father dies: which assets are in his estate?

A father died leaving two sons. The younger son has found out that on his father’s death there

was a house in his father’s name worth about $600,000. The father held a joint bank account

with the older son of $150,000 which the younger son understands is not part of the estate as

it goes automatically to the joint account holder (the older son). The other main assets held by

the father include a life policy of $100,000 which has been assigned to the older son and

therefore is not in the estate, $200,000 held in a superannuation fund where the beneficiaries

are to be determined at the discretion of the trustees, and $50,000 in a superannuation fund,

where the older son has been named in a binding nomination as the sole beneficiary. The

younger son needs to know what assets are actually in the estate.

Comments by Wills & Estate Specialist – Terry Johansson

In all States of Australia, the money in the joint bank account, will pass automatically to the

older brother and is not in the estate. The life policy is also not in the estate as the brother is

the effective “owner”. Superannuation money is not in the estate, but is payable in respect of

the death of the deceased, and often goes hand in hand. When challenging the Will the

younger son will be able to bring his claim in respect of the house, but not the other assets. If

the deceased lived in New South Wales then to the extent that the estate is not large enough

to pay the Award to the younger son, half of the joint account monies may be retrieved by the

Court and used to pay the award. Superannuation monies are separate, and the younger son

may be able to claim same in addition to his claim against the estate. If he brings a claim for

further provision (challenges the Will) then the estate assets will be the house and the

$50,000 superannuation. He will not be able to access the funds that are subject to the binding

nomination, but will be able to make a claim in respect of the monies payable on a

discretionary basis.