Succession for Trusts, Businesses and Companies

Introduction

Some assets do not automatically form part of your Estate and might not be covered by your Will. Accordingly, it may well be necessary to plan for these assets separately.

Also see our following section on Superannuation for details about planning for this asset.

• Trusts – It is necessary to carefully review the terms of a Trust Deed to determine who has the actual control of the Trust and what will happen to the Trust if that person dies. Usually, the controlling parties are called the Trustee, Appointor and/or Guardian of the Trust. Sometimes these parties have the ability to determine their successor and sometimes the Trust Deed automatically determines a successor.

• Businesses – What happens to your Business upon your death will depend on the legal structure you have established for operating the Business. Trusts and companies will generally continue after a key person’s death but who controls them must be considered. Partnerships might be dissolved or continue, depending on the Partnership Deed (or lack thereof).A Business conducted by a Sole Traders will generally cease upon death.Planning for business succession can often involve your Business Partners as well. For example, would the surviving Partners want the option to ‘buy-out’ your share of the Business from your Estate? If so, how will they fund this?

• Companies – Companies will continue even if the Sole Director, Secretary and Shareholder dies. The shares themselves will be the asset that forms part of your Estate and can be devised in your Will. However, it is often necessary to plan who will be continuing as a Director and any other proactive steps that should be taken in respect to the Company upon the death of a key person. Also, see our following section on Company Powers of Attorney.

Can we assist you to plan for the succession of your trust, business or company?

Contact our Wills & Estates team.