Estate Planning and Wills

Business migrants should have an Australian will

For business migrants starting a new life in Australia, having a will probably seems way down on the list of priorities. Yet for those with dependants it should be a major consideration.

Living in Australia without an Australian will

If the unthinkable happens, a lack of a will could tie up family assets unnecessarily, making things very difficult for dependants, and also raise the real possibility of assets being lost forever because no-one is aware of their existence. For migrants there could also be the complication of assets in Australia being subject to an out-of-date will in another jurisdiction.

Your new home and new life

A simple example of how problems can arise is where assets mentioned in an old will were sold to help set up a new life in Australia, perhaps depriving the dependent beneficiaries they were originally left to, but who may still be relying on this support.

Dependants in the migrants’ homeland, such as elderly parents, could also be left in limbo if all assets are in Australia and there is no new will, with an Executor to arrange for bequests to be released to them.

A business migrant living in Australia without an Australian will

For migrant business owners in particular, estate planning can be complicated because, in addition to personal assets such as a home, there is usually some sort of company structure which owns any business assets. There may also be pension or superannuation fund assets now or in the future, which could include life insurance.

Some issues to look out for

Where a company structure owns business assets, such as the business premises, an owner cannot leave them in their will.

Owners usually own company shares, not the individual business assets, and can only leave their shares in a will rather than the specific assets.

Often life policies are held within a superannuation fund and Trustees of superannuation funds control payouts in cases of a member’s death, unless clear and separate instructions have been given to them.

For migrants there are other possible complexities, such as assets owned in another country as well as Australia.

The best way to manage such issues is to have a will which is updated regularly to reflect changing circumstances in Australia, as well as changes to the assets owned.

The impact of Capital Gains Tax on bequests also needs to be taken into account and expert advice will be needed.

Your will and Australian law

Most business migrants are also likely to need advice in writing their will to ensure they comply with Australian law and accurately reflect intent.

There are technical details that need to be satisfied when writing a will, such as two witnesses who cannot be beneficiaries. An Executor, who will be responsible for carrying out the directions of the will and managing the winding up of the estate in an orderly way, must also be named in the will.

Selecting an Executor can be difficult for a new migrant as it must be someone who can be trusted, someone who is financially competent to act in the best interests of the testator and the beneficiaries, and someone who will be there when needed.

Update your will for your new life in Australia

A good approach to managing all these considerations is to use a Trustee Company such as Equity Trustees, which has been managing the affairs of Australians and migrants since 1888. Trustee companies can help in the preparation of wills and trusts, act as Executor and assist you with all the other aspects of your estate planning.