Estate Planning

A current estate succession and business plan properly governs and regulates what will happen to the management of your affairs and the distribution of your estate and business if you die or become totally or permanently disabled. Contrary to some popular urban myths, this not not something can usually be simply done at your local Post Office!…

The Estate Planning Process

An effective estate plan includes a legally and tax-effective Will to protect your estate and the interests of your beneficiaries in the event of your death.

First of all, with your Will, you are able to:
– Make gifts of assets or money that form part of your estate (but be careful, as some of your assets, may not form part of your personal estate*)
– Establish trusts for the ongoing management and protection of your assets for your beneficiaries (either residuary or more tax-effective, testamentary trusts)
– Appoint an executor and trustee
– Appoint guardians (for example, to look after your minor children).

*Most noteworthy is that Jointly-held assets, company property, trust assets, insurances and superannuation however, are not necessarily dealt with by the terms of your Will.

Rather these are usually  considered ’non-estate’ assets for estate planning purposes.  Note there may be specific State legislation that classifies ‘non estate’ assets as ‘notional estate’ for the purposes of a family provision challenge.

It is therefore important to have considered and implemented a comprehensive estate plan to ensure all assets are transferred according to your wishes in the most effective and efficient manner.

In a summary, having your estate plan up-to-date and in order will:
– provide your family members with guidance;
– ensure (as best as possible) that your assets pass as intended by you, but having regard to the law and current tax law;
– ensure that your medical care is dealt with in accordance with your wishes; and
– may save your estate substantial costs, which means more for your loved ones and beneficiaries.

Furthermore an effective estate plan also contemplates the appointment of a person or persons trusted by you to manage your legal and financial affairs and/or make important decisions concerning medical treatment or hospitalisation or life-support, such as using a Advance Health Directive (AHD).  All in the event that you become physically or mentally incapacitated without adequate notice or warning, through the making of an Enduring Power of Attorney (EPA) and an Enduring Power of Guardianship (EPG).

Here’s also a link to useful Government site, the Office of the Public Advocate which has more details and helpful information regarding EPAs, EPGs and AGDs.

Our estate planning and administration services include the following:

  • Simple through to the most complex of Wills and estate plans (including ‘Family Trust succession’) as well as appropriate EPAs, EPGs and AHDs , if so desired.
  • Working with clients’ existing advisors, such as their accountants and financial & insurance advisors, to achieve a complete estate plan which exactly meets each client’s special wishes and requirements.
  • Advising clients about the taxation and asset protection advantages of Testamentary Trusts.
  • Advising clients about the taxation and advantages of General Charitable Trusts as well as tax-effective gifting and donations.
  • Creating “Family Constitutions and Charters”.
  • Applying for Grants of Probate or Letters of Administration.
  • Advising Executors and Trustees as to their duties and obligations towards beneficiaries under Wills and Trusts.
  • Advising trustees, members and dependant clients about their rights as well as  compliance with superannuation legislation for SMSFs.
  • Varying the terms of a Grant Probate or Letters s of Administration by a “Deed of Family Arrangement”.
  • Interpretation of Wills and the “Passing of Accounts”.

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What is Business Succession Planning?

A business succession plan outlines:  what will happen and who will take over your business when you become incapacitated or leave, whether by choice or by circumstance. The aim is to preserve value and provide the business with a smooth transition so that disruption and any loss in profit is minimised.

Process of succession planning

Each business is different of course, but you will likely need to consider:

  1. Goals and objectives of all parties
    • Do you require an ongoing income from the business?
    • Will you have any future involvement in the business or the business entity ?
    • Who is interested in taking over?
    • What impact will there be on all members of your family?
  2. Identify your potential successors
    • Objectively assess their capability, needs, commitment, skills and experience
  3. Consider all the angles
    • Minimising Capital Gains Tax, Transfer (Stamp) Duty and Income Tax for you and your family and remaining partners
    • Retirement income planning
    • Financial implications of business transfer
    • Release of collateral securities (i.e. personal guarantees)
  4. Contingency planning
    • What will happen in the case of catastrophic injury or death?
  5. Corporate structure issues
    • Define roles and responsibilities of current family members and employees
  6. Business valuation
    • Plan to increase the value of the business particularly if it is to be sold.
    • consider valuation methodology.
  7. Exit strategy
    • What are the training or mentoring needs of your successor?
    • How will you exit and by when?

We have significant experience in advising on and preparing the following:

  • Business and Equity Holding structures;
  • Family Charters
  • Inter-generational aspects and family dynamics as well as management buy-outs;
  • Partnership, Shareholder and Unit holder Agreements;
  • Co-Ownership Agreements;
  • Insurance-Funded Buy/Sell Agreements;
  • Risk Mitigation and Asset Protection Strategies;
  • Deeds of Indemnity;
  • Equity Sales and Option Agreements
  • Succession Arrangements for Family/Discretionary and Unit Trusts as well as  SMSFs;
  • Management Buy-Outs ; and
  • Charitable and Philanthropy Arrangements (including Charitable Trusts).

We can help

These are complex issues spanning many legal, financial and administrative arenas. Therefore here at Balfour Meagher we help make sure you have covered all bases and develop a specific plan that come covers all known risks, issues and challenges.

Contact us to find out more or to arrange a consultation with one of our experienced, friendly estate & business succession planning lawyers.