The ownership of assets dictates how gifts should be made. A will may include the following types of gifts:

• gifts of specific items (such as a car, shares or a block of land) or classes of items (such as "my jewellery and my household effects");

• general legacies monetary legacies and annuities, which are usually gifts of money;

• residuary gifts of the remaining balance of the estate;

• gifts which benefit a class of beneficiaries, rather than individually named persons, although there may be issues involving the rule against perpetuities; and

• gifts subject to conditions being met, for example that the beneficiary reach a certain age.

See Gifts.

Real property is land and other immovable property (such as buildings and anything affixed to land), whilst personal property is everything else.

It is essential to obtain independent verification of the ownership of land and the type of title held. The best way is to obtain a current title search from the relevant land titles office.

Ownership (and transfer) of personal property depends on the type of personal property it is. For physical personal effects such as clothing and jewellery, generally, lawful possession is the key to ownership, and transfer is effected simply by delivery of the item to the intended donee. Obtaining written acknowledgement of receipt is sensible. Other types of personal property may require registration with some body or authority.

When drafting gifts of personal property in a will, practitioners need to know the differences in the type of personal property, as this may affect how the gift is expressed.

See Real and personal property.

The family home or "principal place of residence" usually has the most prized status, not just because it is the family home of the client and their family but also because of the availability of concessions and exemptions under the Commonwealth and state and territory taxation laws — particularly for capital gains tax and land tax.

Careful consideration must be given to the family home in terms of:

• succession issues in terms of which beneficiary should receive the family home, especially in a "blended family";

• taxation issues, especially how to attract — and maintain — relevant taxation concessions and exemptions;

• dealing with any encumbrances, such as a mortgage; and

• deciding on the actual form of gift of the family home.

See Dealing with the Family Home.

If the client wishes to gift money in a particular bank account, the gift should mention the full account details, namely the BSB and the bank account number and the name in which the account is held, together with details of the name and address of the bank (or financial institution) branch.

See Bank accounts.

These days much of a person’s life is online (in terms of email accounts, social media accounts, “cloud” storage and the like) as well as stored electronically offline (such as information stored on computer hard drives, laptops, tablets, portable media, etc). It is therefore important to be able to identify and access such “digital assets” and determine how to gift them or otherwise deal with them after the person has died.

See Digital assets.

The executors have a duty to pay out the deceased's debts to enable the estate to be fully administered.

The client may specify in their will a particular source of funds or asset to be used to repay a debt. The direction must clearly specify which funds or assets are to be used, and to which debts by reference to the relevant loan document or other contract or invoice and the full name and address of the relevant lender or creditor.

It should be noted that, if the client's assets are less than their debts as at the date of their death, certain proceeds are protected from bankruptcy.

Special attention should be given to debts protected by a mortgage or other charge over any real or personal property. If the client wishes to make a specific gift of such an asset, the practitioner must obtain instructions regarding how the debt is to be repaid.

See Debts.

Superannuation is often the second most valuable asset of the client after the family home — and increasingly it is the main asset for young single clients (eg in McIntosh v McIntosh , the net assets of the deceased’s estate were about $80,000, whilst in contrast the sum of his interests in various superannuation funds came to $453,748.69). However, it is not actually owned by the client. It is an interest in a trust (namely the superannuation fund). The payment of the client's superannuation benefits are governed by the rules of the relevant trust deed.

The nature of this asset varies with the type of superannuation fund in which it is held. Large "public offer" funds accept contributions from the public and pool them to make investments in assets. Generally the rules of these large funds are very inflexible regarding investment choices and the passing of superannuation benefits. There are also "self-managed superannuation funds", whose membership is restricted to four members who are also the trustees (or directors of a corporate trustee) of the fund, and which are subject to extremely strict prudential requirements.

The ability of a willmaker to say in their will what is to happen to their superannuation fund benefits on their death will depend on whether or not such benefits will be paid to the client's deceased estate on their death or as the client directs in a death benefit nomination form.

Many public offer funds permit members to make binding or non-binding death benefit nominations, in relation to who should receive their superannuation entitlements on their death.

How Superannuation is dealt with on death should be considered in context as a useful estate planning tool.

Whether it should be channeled into the will or whether it should be kept out of the will is an important consideration for the testator.

See Superannuation.

The client usually cannot deal with the assets of "their" family discretionary trust in their will, because as a beneficiary of the trust they do not have any ownership in the underlying trust assets.

However, in certain circumstances the client can influence the future dealings of the trust.

See Family trusts.

The client may have an interest in a business, whether solely or jointly with others.

The succession issues vary according to the form of ownership. It is essential to understand the nature of the client's "interest" in their business, to be able to deal with it in accordance with their wishes.

See Business Interests.

There are numerous tax considerations to be taken into account in drafting a will, which must be advised to the client. Only a very general summary can be provided in this guidance note. If a practitioner does not have a good working knowledge of the tax issues which will impact will drafting and estate planning generally, then he/she should liaise with a colleague or other professionals (such as the client's tax and accounting advisers) who do.

The client will often own several types of assets, each of which will give rise to different tax consequences for the deceased estate. The executors need to be mindful of any issues, otherwise they may expose the estate (or themselves personally) to unintended tax consequences.

See Tax Considerations.