Some assets you own won’t be controlled by your will at all. Even if you used a DIY will kit or a lawyer to make your will, these assets follow their own rules outside of it. In Australia, things like superannuation accounts, life insurance payouts, and jointly-owned property usually bypass your estate. This guide explains why these are called “non-probate assets”, what that means for your estate plan, and how to manage them so your wishes are carried out. We’ll also cover keeping nominations up to date and how LifeVault can help you stay organised.
Quick answer (2-minute guide)
- Super & life insurance: These are usually paid directly to the beneficiaries you’ve nominated, not via your will (unless you direct them into your estate).
- Joint assets: Anything you own jointly (like a joint bank account or a home as a joint tenant) passes to the surviving co-owner automatically, outside the will.
- Your will covers: Assets in your name only (with no separate beneficiary) are covered by your will and go through probate. This includes things like sole bank accounts, investments, personal items, etc.
- Keep nominations updated: Don’t “set and forget” your super or insurance beneficiaries. Out-of-date nominations (e.g. an ex-partner still listed) or expired binding nominations can derail your estate plan – review them regularly, especially after big life changes.
What counts as a non-probate asset in Australia?
Non-probate assets are assets that do not form part of your estate upon your death, meaning they aren’t controlled by your will. Instead, they have their own mechanisms of transfer. Major examples in Australia include:
- Superannuation: Your super is held in a trust by your super fund. When you die, the fund pays out your super (and any associated life insurance through the fund) according to superannuation laws. If you’ve made a valid binding death benefit nomination, the trustee must pay your benefit to the dependent(s) or legal personal representative (estate) you chose. With a non-binding or no nomination, the trustee decides which eligible dependent(s) receive it (or it can be paid into your estate):contentReference[oaicite:11]{index=11}:contentReference[oaicite:12]{index=12}.
- Life insurance policies (with beneficiary nominations): If you have a life insurance policy outside super and you’ve named a beneficiary on the policy, the insurance company will pay the benefit directly to that person (or people). It bypasses your estate entirely. (If you haven’t nominated anyone, or you name your “estate” as the beneficiary, then the payout goes into your estate.)
- Jointly-owned assets (joint tenancy): Assets like a house or bank account that you own as a joint tenant with someone pass automatically to the surviving co-owner when you die. This right of survivorship means the asset never becomes part of your estate – the surviving owner simply continues to own it.
- Other designated accounts: Some financial accounts or investment products might allow you to name a “pay on death” beneficiary. Upon your death, those funds would go directly to the named beneficiary, outside of the will. (These aren’t as common as the above, but it’s possible with certain bank accounts or bonds.)
On the other hand, assets that do go through your will (the probate estate) are those owned solely by you with no designated beneficiary. For example:
- Bank accounts in your sole name
- Real estate owned solely by you, or your share of property held as tenants in common
- Your personal belongings, vehicles, and other valuables not covered by any joint ownership or beneficiary nomination
These sole-owned assets will form part of your estate and be distributed according to your will (or if you have no will, via intestacy). Everything else – your non-probate assets – bypass that process. (Notably, because non-probate assets don’t go into your estate, they also won’t contribute to the residuary estate that your will covers.)
Superannuation death benefits: binding vs non-binding
Unlike a bank account, you don’t “own” your super money outright – it’s held by the super fund’s trustee on your behalf. So you can’t just give it away in your will unless it ends up in your estate. This is why super has its own system of death benefit nominations:
Binding nomination: A formal direction to your super fund about who should get your death benefit. If it’s valid at the time of your death, the trustee must follow it. You can generally only nominate your dependants (such as a spouse, de facto, children, or a financial dependant) or your estate:contentReference[oaicite:13]{index=13}. Binding nominations often lapse every 3 years (unless your fund offers a non-lapsing binding option), meaning you need to renew them.
Non-binding nomination: A wish list for the trustee. The trustee will consider your nominated beneficiaries but isn’t obligated to follow it. They’ll decide based on your dependants and circumstances (which can sometimes mean a split between eligible people). Non-binding nominations don’t usually expire, but since they’re not binding, the trustee has the final say.
If you have no nomination at all, the trustee will pay your super death benefits according to the fund’s rules and the law – typically to your spouse, children, or other dependants, or to your estate if no dependants exist. This process can take longer, since the fund might need to identify and decide between potential claimants.
| Type of nomination | Is the trustee bound by it? | Other notes |
|---|---|---|
| Binding nomination | Yes – the trustee must pay exactly as you direct (so long as the nomination is valid and to eligible beneficiaries). | Usually expires after 3 years (unless it’s a “non-lapsing” nomination). Keep it updated; if your nominees predecease you or your circumstances change, update it ASAP. |
| Non-binding nomination | No – the trustee has discretion, though they will take your wishes into account. | No expiry date. Offers flexibility if your circumstances change (the trustee can adjust who gets what), but there’s less certainty your exact wishes will be carried out. |
| No nomination | No – the trustee will decide who to pay (you have given no guidance). | The fund will distribute your super according to laws and fund rules – usually to your dependants or estate. This can be slower and might lead to disputes if multiple people could qualify. |
Tip: Make sure your super nominations are up to date. If you set a binding nomination a while ago, check if it’s due to lapse or if the nominated person is still appropriate. If your circumstances (marriage, divorce, new child, etc.) have changed, update your nomination accordingly. And remember – if you want your super to fund things in your will (like a trust for kids), you may need to nominate your estate as the beneficiary; talk to your fund or adviser about how to do this in the most effective way.
Life insurance & beneficiaries
Many life insurance policies (outside of super) let you name one or more beneficiaries to receive the payout when you die. Similar to super nominations, this designation will send the money directly to those beneficiaries, completely bypassing your will and estate.
- If you nominate a beneficiary on the policy: The insurer pays them directly. For example, if you name your spouse as beneficiary, the insurance company will issue the payout to your spouse after your death. It won’t matter what your will says about that money – the contract with the insurer controls it.
- If you nominate your estate (or no one): The insurance proceeds will be paid into your estate (to your “legal personal representative”). Then it’s dealt with as part of your estate and distributed according to your will. This can be useful if you want the money to fund specific gifts or trusts defined in your will.
Life insurance payouts are often available much faster than estate distributions, since they don’t usually require probate. That’s one reason people nominate a beneficiary directly – so that person can get funds quickly for expenses. Just like with super, be sure to review your policy’s beneficiaries from time to time. If you forget who you listed, ask your insurer or check your policy documents. An outdated beneficiary (like an ex-partner) could receive the money if you don’t update it.
Property ownership: joint tenancy vs tenants-in-common
How you co-own property affects what happens when you die. With joint tenancy, two or more people own an asset together as a single unit. When one owner dies, their share immediately passes to the surviving owner(s). The asset doesn’t go into the deceased’s estate at all. In contrast, with tenancy in common, each owner has a defined share (e.g. 50/50). When one dies, their share is treated as part of their estate and can be left to someone in their will.
Most married or de facto couples own their home as joint tenants in Australia, so the home automatically goes to the survivor without any will involved. If you hold property with someone but want your portion to go to a specific person (not necessarily the co-owner), you’d need to hold it as tenants in common and specify that in your will.
| Ownership type | If an owner dies... |
|---|---|
| Joint Tenancy | The deceased’s interest passes automatically to the surviving owner(s). The asset does not form part of the deceased’s estate or will. |
| Tenants in Common | The deceased’s share (e.g. their 50%) becomes part of their estate. It will be distributed according to their will (or intestacy rules), potentially to someone other than the co-owner. |
It’s worth checking how your major assets are owned. For example, if you’re listed as a joint tenant on the title of a property, you can’t leave your share of that property to someone else in your will – it’ll pass to the other owner automatically. Changing a joint tenancy to a tenancy in common (called “severing” the joint tenancy) is possible if your intentions change, but that’s a legal step you’d need to take separately.
Co-ordinating non-probate assets with your will
Your will and your non-probate assets should be on the same page, so to speak. Because your will won’t cover certain big-ticket items (like super or jointly-owned property), you need to plan for those in parallel. Here are some tips:
- Review after life changes: Major events (marriage, divorce, having kids, a beneficiary passing away) mean you should update both your will and any beneficiary nominations. For instance, divorce doesn’t automatically remove an ex-spouse as your super beneficiary – you’d have to change that with your fund.
- Align with your will: Think about your overall wishes. If your will leaves everything 50/50 to two people, but your super (which might be a large asset) all goes to one person, your intended balance is thrown off. You might decide to nominate multiple super beneficiaries in the same proportions as your will, or nominate your estate and let the will divide it. Ensure the way you’ve set up super/insurance beneficiaries doesn’t conflict with the spirit of your will.
- Avoid contradictions: Don’t rely on your will to distribute something that has its own nomination. For example, if your will says “I leave my super to my daughter,” but you have a binding nomination to your son, the nomination wins – the fund will pay your son, and that money never enters the estate for your daughter. Make sure to correct such mismatches ahead of time by updating the nomination or the will (usually the nomination, because the will actually has no power over super unless the money goes into the estate).
- Communicate and document wishes: Sometimes non-probate arrangements can be misconstrued by family. You might leave all your super to your spouse and all your estate to your kids from a first marriage – and the kids might think that’s unfair until they understand why. Consider writing a Letter of Wishes to explain your reasoning, especially if your plan is complex. It’s not legally binding, but it can be very useful guidance. Also, make sure your executor or personal representatives know about assets like super and insurance and what your plan for them is (they might have to help facilitate claims, even if those assets aren’t in the will).
Bottom line: non-probate assets can significantly affect who gets what. Treat beneficiary nominations and joint ownership as an integral part of your estate planning, not an afterthought. A well-coordinated plan will prevent surprises and ensure all your assets, inside and outside the will, end up where you want.
One final note: your executor is primarily responsible for handling assets in your estate, but they may also need to assist with non-probate assets (for example, providing a death certificate to your super fund or insurer). Make sure they know which assets are outside the will so they can plan accordingly. (See our Executor Basics guide for an overview of executor duties.)
How LifeVault helps
- Central record of nominations: LifeVault lets you log all your key assets, including super accounts and insurance policies, along with notes on who the beneficiaries are. You can even upload copies of your nomination forms or policy documents. This gives your executor a clear roadmap of which assets will be handled outside the will.
- Track review dates: If you have a binding super nomination that expires every few years, you can note its expiry date in LifeVault. The system can remind you to renew it. Keeping track of these deadlines helps ensure you don’t accidentally let a nomination lapse.
- Key contacts in one place: Store the contact details for your super fund, insurance company, and any advisors in your LifeVault. When the time comes, your executor (or family) can quickly find where to call or submit a claim, even for assets that aren’t covered in the will.
- Executor’s overview (capsule): LifeVault provides an “executor capsule” or summary that flags which assets are part of the estate and which are not. Your executor can see at a glance that, say, your super isn’t in the estate but has a nomination to your spouse. This helps them avoid wasting time on assets they don’t need to probate, and focus on coordinating with the right beneficiaries/funds instead.
- Privacy and control: Through features like SensitiveGate and auto-lock, you can share your LifeVault information with your executor or family safely. For example, you might allow your spouse to see that you have a life insurance policy and the policy number, but keep the ability to change the nomination locked down. After you pass, your executor can access the full details. LifeVault’s security ensures that sensitive info (like passwords or account numbers) stays protected until it’s truly needed.
In short, LifeVault acts as a central hub for your estate plan, covering not just your will but all the bits that live outside it. It helps you keep beneficiary info current, provides guidance to your executor about what’s what, and stores those crucial documents and instructions in one secure place.
FAQs
Does my will control my super?
Usually not. Your superannuation isn’t automatically covered by your will. It’s controlled by the super fund trustee and will be paid according to your super beneficiary nomination (or the fund’s decision under super laws). Only if your super is directed into your estate (or no eligible dependants are found and the fund sends it to your estate) will your will come into play for your super.
What happens if my super nomination expires?
If a binding nomination expires and you haven’t renewed it, it’s as if you have no nomination in effect. If you were to pass away with no valid nomination, the super fund trustee will decide who gets your super (usually choosing among your dependants or paying it into your estate). That’s why it’s important to renew lapsing nominations—so you stay in control of who gets your super.
Can I name anyone as a super beneficiary?
No – super rules limit who you can nominate. You can choose your spouse (including de facto), your children, someone financially dependent or in an interdependent relationship with you, or your estate (to go via your will). You generally can’t directly nominate a friend or a non-dependent relative unless they fit the dependency criteria or you route the benefit through your estate.
If I own a house jointly, does it go through probate?
Not if it’s owned as a joint tenancy. In that case, your share passes automatically to the surviving owner without going through your estate or the probate process. The property wouldn’t be part of your will at all. (If it were owned as tenants in common, then your share could be left in your will and would go through probate.)
Should I make my estate the beneficiary of super or insurance?
It depends. Naming your estate as beneficiary can be useful if you want the funds to be distributed via your will (for example, to set up trusts or give to someone not allowed as a direct super beneficiary). However, it can also slow down access to the money and may expose it to any claims against your estate. Many people choose to nominate a spouse or dependants directly for a faster payout and potentially simpler tax treatment. Consider your situation (and maybe get professional advice) to decide what’s best in your case.
Are joint bank accounts non-probate assets?
Yes. If you hold a bank account jointly with someone, when you die the funds usually go straight to the surviving account holder. The account doesn’t need to be handled by your will or the probate court. The bank will typically retitle the account in the survivor’s name once given a death certificate. In contrast, a bank account in your sole name would be frozen until your executor gets authority to distribute it via your estate.