Signing the Wills can feel like the finish line. For many families it is closer to halfway. An estate plan only works if the assets, structures and nominations line up with the documents, and that often depends on steps taken after signing.
Financial advisers, wealth managers and private bankers are often best placed to notice when the plan and the portfolio drift apart, because they see accounts opened, assets bought and sold, and family circumstances change. This article sets out, in general terms under Australian law, where estate plans commonly fail after signing, and questions advisers and lawyers can discuss together. These are issues to raise, not answers; the right approach depends on the facts.
Ownership that does not match the plan
A Will generally deals only with assets the person owns in their own name. Assets held as joint tenants usually pass to the surviving joint owner by survivorship, outside the Will. Assets held by a family trust or company are controlled under the trust deed or company constitution, not the Will. A plan may fail if an account meant to fund a testamentary trust is joint, or an investment meant for the family trust was bought personally.
- Does each account and holding sit in the name the plan assumes?
- Have new assets acquired since signing been placed in the intended entity?
- Would changing ownership now raise tax or duty questions for the accountant?
Superannuation nominations
Super does not automatically form part of the estate. Whether a binding death benefit nomination is effective depends on the fund’s rules and the governing law. Some nominations lapse after a period unless renewed; some funds permit non-lapsing nominations; and a nomination may fail if it names someone who is not eligible or is not completed correctly. Our separate article on super nominations explores these issues.
- Is the nomination binding, lapsing or non-lapsing, and when was it last confirmed with the fund?
- Does it still reflect the Will?
Trustee, director and appointor succession
A family trust is controlled through its trustee and, in many deeds, an appointor or guardian with power to change the trustee. A family company is controlled through its directors and shareholders. These roles do not necessarily follow the Will. Shares may pass under the Will while the directorship does not; an appointor role may pass under the deed to someone the family did not intend. If a sole director dies, there may be a period when no one can operate the company’s accounts.
- Who becomes appointor or trustee if the founder dies or loses capacity, and does that match the Will?
- Is there a successor director arrangement for each company?
Investment powers and portfolio mandates
A testamentary trust or family trust can only invest within the powers in its Will or deed and the general law, and trustees owe duties of care when investing. In Victoria, the Trustee Act 1958 (Vic) supplies default investment powers subject to the trust instrument. Attorneys have their own duties. When a trustee or attorney takes over a portfolio, the existing mandate may not carry across.
- Do the trust’s investment powers permit the strategy the adviser expects to run?
- Will a new trustee or attorney need a fresh mandate?
Enduring powers of attorney that banks and platforms will accept
An enduring power of attorney may be valid but still not accepted by a particular bank or platform without its own verification process. Requirements also vary across Australia. In New South Wales, for example, a power of attorney generally needs to be registered before it is used to deal with land, and Tasmania requires enduring powers of attorney to be registered. A power of attorney made overseas may not be recognised in Australia, and an Australian document may not be accepted abroad.
- Has each institution’s process for accepting the document been checked in advance?
- Are separate documents needed for assets in other states or countries?
Insurance ownership and beneficiaries
Life insurance can pass in different ways depending on who owns the policy, whether it is held inside super, and any nominated beneficiary.
- Who owns each policy, and who receives the proceeds?
- Do the beneficiary details reflect the current plan?
Letters of wishes
A letter of wishes usually does not bind a trustee, but it can guide decisions, if the right person can find it.
- Is the letter held by, or accessible to, the trustee, appointor or executor who will need it?
- Is it consistent with the current Will and trust deed?
Offshore accounts and offshore Wills
Families with assets in Singapore, Malaysia, Hong Kong, mainland China, Taiwan or Indonesia may hold separate Wills for those assets. A new Will in one country can unintentionally revoke a Will made in another if the revocation clause is too broad. Local succession, probate and tax rules may also apply.
- Do the Australian and offshore Wills each say clearly which assets they cover?
- Are the executors and beneficiaries consistent across countries?
Life events that can change the plan
In Victoria, marriage generally revokes an existing Will unless the Will was made in contemplation of that marriage. Divorce generally revokes gifts to and appointments of the former spouse, unless the Will shows a contrary intention. Separation without divorce generally does not change the Will. Other states have similar rules, with differences in detail.
A birth may mean a child is not provided for. The death of a beneficiary, executor or attorney can leave gaps. Migration can change tax residency and affect how trusts and distributions are taxed. The sale of a business may leave a gift in the Will with nothing to operate on. Each may call for advice on whether the documents still work.
A suggested annual joint review agenda
An annual meeting of adviser, lawyer and, where appropriate, accountant might work through questions such as:
- Has anything happened in the family this year: marriage, separation, birth, death, illness, a move overseas?
- Have any assets been bought, sold, refinanced or moved between entities?
- Are super nominations, insurance beneficiaries and account ownership still aligned with the Will?
- Do trustee, appointor and director succession arrangements still fit?
- Are attorneys still willing and able to act, and accepted by the relevant institutions?
- Are offshore Wills and powers of attorney still consistent with the Australian documents?
- Has a change in tax law or residency raised questions for the accountant?
How we work with you
We act for the client and share information with advisers only with the client’s consent. With that consent, we can review implementation alongside you after signing, confirm what needs to change in trust and company records, and join periodic reviews. We work with the client’s accountant on tax and with local lawyers in Asia on offshore assets.
Frequently asked questions
Does marriage revoke a Will in Victoria?
Generally yes, unless the Will was made in contemplation of that marriage. Anyone marrying may need advice on whether the Will should be remade.
Does my Will cover my superannuation?
Not automatically. Super is paid under the fund’s rules and any valid nomination, which may or may not direct it to the estate.
Who controls a family trust after the founder dies?
That depends on the trust deed, including who becomes trustee and appointor. The Will may not control these roles unless the deed allows it.
Will every bank accept my enduring power of attorney?
Not necessarily. Institutions have their own processes, registration rules vary by state, and foreign documents may not be recognised.
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 has practised in Melbourne since 1990 and works with financial advisers, wealth managers and private bankers whose clients are Asian families with assets in Australia and overseas. We review whether signed estate plans line up with the client’s assets, structures and nominations, and update documents as life changes. 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 client’s accountant and registered tax agents and with lawyers in Asia, our notary public prepares documents for use overseas, and 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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