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.

Tony Pointon leads a team of lawyers within Pointon Partners that have significant experience and expertise in this area of estate planning, and disputes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.