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03 January 2023

It Depends – Should I gift specific assets in my Will?

In this edition of ‘It depends’, partner Scott Hay-Bartlem talks about whether you should gift specific assets in your Will.

In this edition of ‘It depends’, partner Scott Hay-Bartlem talks about whether you should gift specific assets in your Will.

Video transcript

Welcome to this edition of It Depends. I’m going to talk about whether we should give specific assets in my Will.

Should I give specific assets in my will?

It depends.

What if I do?

You absolutely can give specific assets in your Will to specific people. I’ll give my pretty blue ring to my son. If you do that, though, it means the beneficiary gets that particular asset and only that particular asset. It’s really important to make sure that we properly describe that particular thing. Do I have multiple pretty blue rings, that can lead to disputes between people.

What if I don’t own the asset when I die?

If you give a specific asset to a particular beneficiary and you don’t own it when you die, then that beneficiary’s actually going to miss out. Now you might draft it to say ‘I give the car I own at my death to my beneficiary’. In that case doesn’t have to be the car that you had when you did the Will, but you need to draft it carefully to make it different like that. The only exception is if you lose capacity and your attorney, under an enduring power of attorney, sells the asset, then the beneficiary who was going to get that asset gets the money’s worth, the value of the asset, when you die.

What if I do not give any specific assets in my will?

So, you don’t have to list off all your assets under your Will. You can leave a certain amount of money to different beneficiaries. You can leave people different percentages or different proportions. You can say equally between my three children. Now, if you do that, the beneficiary, then the executor can still talk amongst themselves and then don’t have to take a third of every asset, they can horse trade and each take particular assets as part of their particular share. Now, if a beneficiary takes more than their share, that’s when we have some issues to deal with and we’ll do a documents called a Deed of Appropriation, which ties all that together. That can be a more flexible way of leaving estate assets. The other thing is you must always have a rest of my estate, a residue clause to pick up any assets if you haven’t specifically given them. If you don’t give away all your assets, you end up with an intestacy which means you haven’t given all your assets away and there’s a list in the legislation of who gets what assets. Now if you’ve got any questions about giving specific assets or Wills or estate planning. Please contact a member of our succession team. Thanks for watching this It depends.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Scott Hay-Bartlem
Partner

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