For some families, a simple Will and a power of attorney are enough. If what you own is mainly the family home, savings and superannuation, a simple estate plan may suit you well.
Families who own a business, hold investments through companies and trusts, or have children and relatives overseas usually need more careful planning. Planning with trusts and company structures can help protect assets, pass wealth on smoothly and leave a lasting legacy. For many Asian business owners in Australia, some children work in the business and some do not, and family or assets are in Malaysia, Singapore, Hong Kong, mainland China or Taiwan. This article outlines, in general terms, the issues such families commonly face under Australian law.
What careful planning aims to do
We build estate plans around the family’s own goals: who should inherit, who should lead the business, and what the family wants to leave behind. Along the way we pay attention to tax, and to reducing the risk of future disputes and the cost they bring. Tax outcomes depend on the facts and on changing laws, so none can be promised.
Planning also means balancing two things that can pull apart: family harmony and the long-term running of the business. A plan that treats everyone identically may leave the business without clear leadership; one that suits the business may feel unfair to a child who chose another career.
Your Will may not reach your business
A Will deals only with assets you own personally. Shares in your company generally form part of your estate, but the company’s own assets belong to the company. Assets in a family trust do not pass under your Will at all; the trust deed decides who becomes appointor and who controls the trustee company.
Who holds control when you cannot
Many founders are sole director, majority shareholder and appointor at once. It helps to trace the chain of power and ask at each link who takes over on death or incapacity. The Corporations Act 2001 (Cth) allows the personal representative of a deceased sole director and shareholder to appoint a director, but that can involve delay. An attorney under an enduring power of attorney generally cannot act as a director in your place, and whether an attorney can exercise an appointor’s power depends on the deed.
The difficult conversations
Many family business plans fail on conversations nobody wanted to have. We are willing to have them, carefully, with family members who are also fellow shareholders. They may cover:
- what happens if a sibling wants to leave, and how the price would be set;
- whether children in and out of the business should be treated differently, and whether that could be challenged;
- the position of spouses, including a child’s spouse, and how the business could be exposed if a relationship breaks down;
- which family law agreements and shareholders’ agreements may be needed to protect the business.
Under the Family Law Act 1975 (Cth), the court looks at property and financial resources, which may include business interests and, depending on control, trust assets.
Solutions we may discuss with you
These are described in general terms only; whether any suits your family needs advice on your circumstances.
Single and multiple Will planning
Families with assets in several countries often use an Australian Will together with Wills in other countries, drafted with local lawyers so that one does not revoke another. A Will may also create testamentary trusts, which can offer flexibility and some protection for beneficiaries.
Keeping assets outside the estate where appropriate
Assets in a family trust, assets held as joint tenants and superannuation covered by a binding death benefit nomination generally pass outside the Will. In New South Wales, however, the court can designate some property that passed outside the estate as “notional estate” in a family provision claim, so these arrangements are not a complete answer there.
Passing future growth to the next generation
Australia has no formal regime for “freezing” a founder’s interest in a business at its current value. Families pursue a similar goal in other ways, such as settling a family trust and holding company so that new investments and future growth accrue to the next generation. Moving existing assets can trigger capital gains tax and stamp duty, although rollovers may be available in some cases. We discuss this in a separate article.
Shareholders’ agreements and buy-sell arrangements
A shareholders’ agreement can set out what happens on death, incapacity, divorce or exit. A buy-sell deed, often funded by insurance, can let the remaining owners buy a departing owner’s shares at an agreed price. They need to match the constitution, trust deed, Will and policies.
Restructures and distributing income within the family
Restructuring a group or distributing trust income among family members can be legitimate, but the tax law limits income splitting. Section 100A of the Income Tax Assessment Act 1936 can apply where a beneficiary is made entitled to trust income while someone else in substance receives the benefit. The personal services income rules in Part 2-42 of the Income Tax Assessment Act 1997 can treat income that is mainly a reward for an individual’s own skills and efforts as that individual’s income, even if earned through a company or trust. Proposals for a minimum tax on discretionary trusts from 1 July 2028 are before Parliament and are not yet law.
Binding financial agreements
Under the Family Law Act, couples can make binding financial agreements before, during or after a marriage or de facto relationship, commonly called prenuptial or cohabitation agreements. Each party must receive independent legal advice, strict requirements apply, and a court can set an agreement aside in some circumstances.
Charitable giving
Private and public ancillary funds have been renamed private and public giving funds from 1 October 2026; the change is in name only. Gifts to charities can also be made in a Will.
Working with your other advisers
With your consent, we work alongside the advisers you already trust:
- your accountant and registered tax agent, on the tax position, loan accounts and the timing of any restructure;
- your financial adviser, on investments and superannuation, including death benefit nominations;
- your insurance adviser, on cover that funds buy-sell arrangements;
- a valuer, where shares or assets need to be valued for a transfer, a buy-sell price or fairness between children;
- your banker, on lending, guarantees and how a restructure affects existing facilities;
- lawyers overseas, on Wills, succession and documents in other countries.
We share information only as you authorise, so that the legal documents, tax position and business plan point the same way.
Questions to discuss with your adviser
- If I died or lost capacity tomorrow, who would control each company and trust?
- How might children in and out of the business be treated, and could that be challenged?
- How exposed is the business to my relationship, or my children’s?
- Which family arrangements should be legally binding, and which should not?
Frequently asked questions
Does my Will cover my family trust?
Generally not. Trust assets are controlled under the trust deed, although the deed may pass a control role to your executor, so the two need to be read together.
Do I need a complex estate plan?
Not necessarily. A simple plan suits many families. More careful planning is usually needed where there is a business, investments held through companies or trusts, or family and assets overseas.
Should all my children inherit equal shares in the business?
There is no single answer. Equal ownership can sit alongside different management roles, and some families balance outcomes with other assets or insurance. The right approach depends on the family and needs advice.
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 advises Asian business owners on Wills, trusts, company documents and succession plans designed to work together. 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 Family Dispute Resolution Practitioner, and an Accredited Family Business Advisor. We work with your accountant, registered tax agent and other advisers, 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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