When we are approached by a client to draft a will, they are often surprised by the number of questions that we ask them that help us determine what matters they will need to consider beyond the drafting of their will.
We set out below a list of issues that we consider our clients should consider beyond the will:
| Asset type/control aspect | Person assuming control or ownership | Source of entitlement |
| Assets held by joint tenants (as opposed to tenants in common) | Surviving joint tenants | The common law ‘rule of survivorship’ |
| Superannuation entitlements (under a binding nomination) | Member’s nominated dependants | Valid binding nomination created in accordance with trust deed |
| Superannuation entitlements (no binding nomination) | Member’s dependants selected by the fund’s trustee | Trust deed, trustee discretion or terms of pension |
| Assets held by a discretionary trust | Appointor/ trustee’s legal personal representative or nominee may assume control, depending on the terms of the trust deed | Trust deed or relevant Trusts Act |
| Assets held by a unit trust | Assumption of control depends on the terms of the trust deed but in most cases the unit holders will hold the power of appointment | Ultimate benefit in trust regulated by trust deed and unit holdings |
| Private company | Surviving directors retain control. Additional directors may be appointed by shareholders. Existing shareholders retain ownership | Constitution, shareholders agreement (shareholder’s will may be relevant) or Corporations Act 2001 (Cth) |
| Loan to company or trust | Lender or legal personal representative of lender | Loan agreement may override will |
| Business interests | Surviving business owners/ remaining trustees of a trading trust | Business succession agreement or trust deed |
| Life insurance | Policy owner or nominated beneficiary | Insurance policy |
Please note that this is not a complete list and a full discussion of matters such as current superannuation arrangements, reversionary pensions if any and life insurance beneficiaries is of benefit.
In addition to the above issues, we require our clients to consider many other matters when determining their estate planning. This includes whether the creation of testator trusts are appropriate and where so, the type and purpose of the testator trust.
For example there are:
- Those that are interested in asset protection for their intended beneficiaries from creditors
- Those that are concerned about creating trusts for children who are minors so that they may benefit from beneficial tax rates
- Those that are looking to protect assets from potential divorce claims made upon the intended beneficiaries.
- Those that are wishing to keep current assets or businesses within the family beyond their death.
The importance of the creation of effective powers of attorney both financial and medical, cannot be underestimated and a full discussion of their creation is necessary.
An understanding of the assets that the client have in their possession or under their control is of vital importance to determining the approach. This includes both, understanding the location of the assets and also, in some instances, the nature of the assets whether it be physical, digital or intellectual property.
The clients with international assets, of which there are many due to the multicultural society that we live in, often require consideration of additional estate planning in countries other than Australia. This is best fully understood by the client and the relevant estate planning professionals who understand the nuances surrounding these circumstances.
In circumstances where there are multi-generational family assets, it is also worth considering as part of the Estate Planning exercise, a family arrangement agreement.
Tony Pointon is a member of the Society of Trustees and Executor Professionals (‘STEP’), which is an organisation that internationally recognises professionals in this area. He is also a specialist tax advisor and a Chartered Tax Advisor. He is further the former chairman and executive committee member of LAWorld, and has affiliated member firms in 55 countries.
Tony Pointon leads a team of lawyers within Pointon Partners that have significant experience and expertise in this area of estate planning, and disputes.
If you wish to discuss estate planning or are experiencing a current dispute, please do not hesitate to contact us.
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