• Niche Law

Estate Planning

Estate planning involves so much more than just a will. In fact, a will only covers assets personal to the will maker. In Queensland, a will cannot cover:

· Trusts;

· Superannuation;

· Business assets;

· Jointly owned assets;

· Life insurance; and

· Investments.

When establishing any of the 6 assets listed above, forward succession planning is beneficial. Incomplete or improper estate planning can result in confusion and dispute (both personal and legal).

Superannuation and life insurance are often one of the largest assets people own. However, neither asset can be effectively dealt with in a will. Both superannuation and life insurance are managed by the trustee of the superannuation fund or insurance fund. The trustee usually distributes super and payouts to the beneficiary/ies nominated by the policy holder and if there is no nominated beneficiary, the trustee will decide how and who to distribute funds to. Binding death nominations are first made on establishing the fund. Too often, nominations are forgotten about and not revisited, which can result in family members lodging death benefit claims with the trustee. A binding death nomination can be made at any time. We encourage our clients to revisit their death nominations whenever they revisit their will and/or consider their wider estate planning issues.

The rule of survivorship dictates that any property owned as joint tenants (typically residential property, but also cars and bank accounts) cannot be dealt with in a will. Instead, the interest of the deceased person passes directly to the surviving tenant or tenants outside of the will and estate. Forward succession planning when acquiring assets is therefore key.

Trust assets cannot be effectively dealt with in a will. Trust assets are not personal assets. It is the trust that owns the assets (on trust) for the benefit of the trust beneficiaries. Succession planning in family and other types of trusts depends on the trust deed and its clauses that operate on the death of either the trustee or the beneficiary.

Dependent on structure, business assets are also typically owned in some way by the business and are not personal assets. Estate planning options available to family business include power of attorney, shareholder agreements, partnership agreements, trusts, put and call options to purchase and family constitutions. Often multiple family members or families are involved in business. In these circumstances, each family member should have a complementary estate plan.

We offer comprehensive estate planning that examines our client’s affairs as a whole and provides both legal and practical advice that addresses future management of each asset. We offer succession planning advice to clients at all states and stages that includes asset structuring and protection.