Private bankers and trust officers in Singapore, Hong Kong, Kuala Lumpur and elsewhere often have clients whose plans touch Australia without anyone saying so. A child studies in Melbourne and stays, or a client buys an apartment in Sydney. The client’s estate plan was built for Asia, and Australian law was never part of the conversation.
Australia has no inheritance tax, which can create a false sense that there is little to consider. In practice, Australian succession, tax, property and family law rules can reshape an otherwise sound plan. This article is a triage list for international advisers: issues to flag and discuss with Australian counsel, with a short note on why each one matters.
Issues to flag and discuss with Australian counsel
1. Australian Wills and multiple Wills
Each Australian state has its own Wills legislation and formal requirements, which generally include writing, the will-maker’s signature and witnessing by two people present together. Clients with assets in several countries often hold several Wills. The issue to flag is how they interact: a standard revocation clause in one Will can revoke another, and inconsistent definitions or executor appointments can complicate administration in each country.
2. Superannuation passes outside the Will
Australian superannuation is held by the fund trustee and does not automatically form part of the estate. Who receives it depends on the fund’s rules and any binding death benefit nomination, which may lapse or be invalid if not kept current. Death benefits paid to people who are not dependants for tax purposes, such as many adult children, can attract tax. Flag whether the client or a family member holds super and whether the nomination reflects the wider plan.
3. Joint tenancy and survivorship
Property held as joint tenants passes to the surviving joint owner by survivorship, regardless of the Will. Flag whether joint ownership is consistent with the intended estate plan, and whether a tenancy in common would better reflect it.
4. Family provision claims and NSW notional estate
Every Australian state and territory allows eligible people, which can include spouses, children and in some states others, to apply for provision from an estate. A Will that excludes a child, or leaves most assets to one branch of the family, may be open to challenge in Australia. In New South Wales, the court can also designate property outside the estate as notional estate in some circumstances, including certain transfers and failures to exercise powers before death. Flag any client with NSW connections whose plan relies on lifetime transfers, joint tenancies or nominations.
5. Testamentary trusts and the proposed trust minimum tax
Australian Wills can establish testamentary trusts, which may provide asset protection and, in some cases, more favourable tax treatment of income for minor beneficiaries. Bills introduced to Parliament on 14 October 2026 propose a minimum tax on discretionary trusts from 1 July 2028, with an exclusion for genuine testamentary trusts and deceased estates, subject to conditions. These Bills are not yet law. Flag whether an Australian testamentary trust is appropriate and how the proposed regime may affect it.
6. No inheritance tax, but capital gains tax on death
Australia does not levy inheritance or estate duty. However, capital gains tax (CGT) can arise on death or later. Generally, death does not itself trigger CGT when an asset passes to the executor or a beneficiary, and the beneficiary inherits the cost base, so tax may arise on a later sale. A key exception for international families is CGT event K3 (s 104-215 of the Income Tax Assessment Act 1997): where an asset passes to a foreign resident beneficiary and is not taxable Australian property, a gain may be taxed in the deceased’s final return. In addition, legislated CGT reforms change how gains are taxed from 1 July 2027. Flag where a resident deceased leaves assets to non-resident family, and whether the plan accounts for the new CGT rules.
7. Foreign trust distributions to Australian residents
Distributions from a foreign trust to an Australian-resident beneficiary may be assessable under s 99B of the Income Tax Assessment Act 1936, including some capital distributions and benefits such as use of trust assets, and an interest charge may also apply. Australian residents may also be affected by the controlled foreign company and transferor trust rules. Flag any offshore trust with Australian-resident beneficiaries or a settlor who has become resident.
8. Residency of foreign trusts and companies run from Australia
A trust is generally an Australian resident if any trustee is resident or its central management and control is in Australia. A foreign company may be resident if it carries on business in Australia and its central management and control is here, which the ATO addresses in TR 2018/5. Where an Australian-resident family member makes the real decisions for an offshore trust or company, residency may shift. Flag who in fact makes decisions and where.
9. FIRB, the foreign buyer ban and state surcharges
Foreign persons generally need Foreign Investment Review Board approval for Australian residential land, and from 1 April 2025 foreign persons are banned from buying established dwellings, subject to limited exceptions; the ATO states the ban now runs until 30 June 2029. States also impose surcharge purchaser duty and land tax surcharges on foreign persons, and trusts with foreign beneficiaries can be treated as foreign. Flag any purchase by a foreign trust or company, and whether a discretionary trust deed needs to exclude foreign beneficiaries.
10. Enduring powers of attorney
A power of attorney made overseas is not automatically recognised by Australian banks, land registries or institutions. If a client with Australian assets loses capacity, the family may need a tribunal appointment. Flag whether an Australian enduring power of attorney is needed for Australian assets.
11. AML, source of wealth and CRS
Australian banks, and since recent reforms an expanded range of professionals, conduct customer due diligence and may ask for source of funds and source of wealth evidence. Australia also exchanges financial account information under the Common Reporting Standard, including about controlling persons of trusts. Flag whether the client’s documentation will satisfy Australian institutions and whether reporting is consistent across jurisdictions.
12. Probate, resealing and foreign grants
Australian assets usually need an Australian grant, either a fresh grant or the resealing of a foreign grant. Resealing is available only for grants from certain countries, and the rules differ by state. The NSW Supreme Court, for example, states that recent Hong Kong grants cannot be resealed in NSW, so a fresh NSW application may be needed. Flag where Australian assets are located and whether the home-country grant can be used.
Situations to discuss with Australian counsel
- A client, spouse or child is, or may become, an Australian tax resident.
- A client holds Australian real estate, shares or super, or plans to buy property.
- An offshore trust has Australian-resident beneficiaries, protectors or decision-makers.
- The plan excludes or treats unequally a family member living in Australia.
- A client is ageing or losing capacity and has Australian assets.
- A death has occurred and there are Australian assets to administer.
- An Australian family member is separating or in financial difficulty.
An illustration: a Singapore client with a son in Sydney
Consider a hypothetical client of a Singapore trust company. She lives in Singapore, holds most of her wealth through a Singapore trust, and owns an apartment in Sydney held jointly with her son, who migrated and is now an Australian tax resident. Her Singapore Will leaves her personal assets equally to her children, and her son is a discretionary beneficiary of the trust. Several issues arise: survivorship over the apartment, NSW family provision and notional estate exposure, how trust distributions to her son are taxed under s 99B, whether his involvement in trust decisions affects its residency, whether her Singapore grant could be used in NSW, and whether she needs an Australian enduring power of attorney. The right approach depended on facts that needed advice in both Singapore and Australia.
Frequently asked questions
Does Australia have inheritance tax?
No. However, capital gains tax can arise on later sales of inherited assets, and in some cases on death where assets pass to foreign resident beneficiaries. Superannuation death benefits may also be taxed.
Can a foreign grant of probate be used in Australia?
Sometimes, through resealing, but only for grants from certain countries and subject to state rules. NSW does not reseal recent Hong Kong grants, for example.
Are offshore trust distributions taxed in Australia?
They may be, under s 99B and related rules, depending on the beneficiary’s residency and the nature of the amount. Specific tax advice is needed.
Every family’s situation is different, and the answer often turns on details. Book a consultation so we can review your documents and circumstances before you act.
How Chua Tan Associates can help
Chua Tan Associates acts as Australian counsel to private banks, trust companies and family offices, and works with lawyers in Asia on clients’ cross-border succession plans. We review Australian Wills, superannuation nominations, property holdings and trust arrangements against the client’s wider plan, and assist with Australian probate and reseal applications. Justin Chua trained in accounting (Bachelor of Commerce, accounting major), is an affiliate member of STEP (the Society of Trust and Estate Practitioners), and advises on the legal and tax structure of family wealth together. He is a Nationally Accredited Mediator and an Accredited Family Business Advisor. We work with the family’s accountant and registered tax agents, and the firm’s notary public assists with documents for use overseas. We advise in English, Mandarin and Cantonese.
Important: This article is general information only and must not be relied on. It is not legal, tax or financial advice, does not take your circumstances into account, and may not reflect changes in the law after publication. Laws of other countries may also apply. Do not act or refrain from acting on the basis of this article. Reading it or contacting us does not create a lawyer–client relationship. Please book a consultation for advice on your situation.
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Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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