Family Trust, Business & SMSF Estate Planning

What happens to my Family Trust if I die?

The assets in a family trust are not governed by your Will. The trust is a separate entity and ‘lives on’ after the original controllers pass away. Therefore it is critical that you put in place separate documents to select who will control the trust if you die or lose capacity. Under a typical family trust, the person who controls the trust can access the assets and income of the trust. Who you select to control the trust should align with your overall testamentary wishes as contained in your Will and other estate planning documents.

Estate planning for my companies

You may also be a shareholder of a private company, such as a trustee company, a trading company or a company that is a corporate beneficiary of a Family Trust. Shareholders (or ‘members’) of a company usually have rights to the assets of a company on winding up, along with dividend and voting rights (including voting on the Directors). Most company constitutions specify that where shares are left to more than one person, the first person named on the share register has the vote. This can result in inequality amongst shareholders, particularly where for example you have left your shares to your children, and the eldest child invariably appears first on the title.

You need to consider who your shares in these companies will pass to on your death and how the voting rights will work in terms of who will have control of the company. Who has control is also important if you become incapacitated. These issues can be solved with good estate planning.

How can we help?

These entities, which are so advantageous while you are living, become tricky to incorporate into your estate plan because their assets do not form part of your estate governed by your Will. As such, it is important to ensure that the control of these entities (and their underlying assets) pass to the people that you intend on your death and are safeguarded for your benefit in the event of your incapacity.

Estate planning for companies and trusts require the expertise of an experienced estate planning lawyer who has a good understanding of these commercial entities. Estate First Lawyers can advise you fully and put in place the documents that each entity needs to fulfil your estate wishes.

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