Succession Planning

Introduction

These days it is not sufficient to ask a client “do they have a Will or to review an existing will”. Wills only deal with individually owned assets. A person’s financial affairs include individually owned assets and also other assets they may control within family trusts, have commercial superannuation products or self managed super funds SMSF.

In providing succession planning advice, our legal team would need to consider a wide range of planning issues including:

  • family and business structures;
  • exit strategies (partnership, shareholder and unitholder agreements etc);
  • revenue (tax and duty) consequences;
  • asset protection strategies;
  • situation of businesses, directors’ plans and objectives;
  • powers of attorney (in case of incapacity) financial, medical treatment and guardianship. Are special powers in place in relation to self managed super funds?;
  • commercial strengths and issues as to business.

Need

  • family tree for client (including details of partners, children, likely beneficiaries with disability, insolvency and family law issues);
  • current Will;
  • details of any charities to benefit under a Will and to identify them;
  • to know whether any person is likely to make a claim provision against the client’s estate;
  • all powers of attorney;
  • corporate/entity family tree;
  • input from:
    – financial adviser (related to business plans and investments here and overseas etc);
    – accountant (related to structures, tax information, loan accounts, details of assets here and overseas etc);
  • list of assets (individual and joint) and liabilities (individual and each entity) including location);
  • family law together with pre-and post relationship agreements;
  • all relevant business documents (family trusts and unit trusts, superannuation deeds, company constitutions, partnerships, life insurance, nomination of beneficiaries, buy/sell agreements etc);
  • input from client financial adviser and accountant;
  • input from overseas lawyer regarding assets held overseas;
  • an understanding of proposed crucial appointments of executors, appointors of trusts and attorneys – such appointments must be regularly reviewed;
  • succession plan dealing with control companies ( directorships, shareholdings and constitutions) and trusts (trustees, appointors, guardians and trust deeds.

Records

  • It is essential that all individual and business documents be kept in one place and a further copy be held by advisers.

Timing

  • Individual and business succession planning should take place at the same time to ensure all parts fit together.
  • Regular review of Wills and business plan needed to be done particularly as superannuation nominations may have limited life. As well the laws relating to Wills and taxation do change from time to time.

Team effort

  • The best succession planning is carried out in a multi discipline fashion with accountants, financial planners and lawyers working together to develop a good outcome.