A lot of people with a business, a family trust and an SMSF have a will that deals with almost none of it. The will controls what you own personally when you die. It doesn't control the trust, which follows its deed. It doesn't control your super, which follows the fund's rules. It may not control who runs your company the morning after the funeral. For a business owner, the personal estate can be the smallest part of the picture.
That's why estate planning for business families needs an accountant as well as a solicitor. We map everything, work out where it goes and what tax falls on it, and give your solicitor a brief they can draft from. If you'd like a checklist to work through first, start with our estate planning checklist.
Why do business owners need an estate planning accountant?
Because three questions sit outside the will, and each one needs someone who understands your structure:
- Who controls each entity when you die or lose capacity? The appointor of your trust, the directors and shareholders of your trustee company, the trustees of your SMSF.
- What tax will the people who inherit pay? Super to adult children, capital gains on inherited assets, penalty rates on income for grandchildren under 18.
- What happens to the business? Who runs it, who owns it, how the family members who aren't in the business are treated fairly, and how the transfer is funded.
What does your will not control?
This is the table we start with. Most clients are surprised by at least one row.
| Asset | Controlled by | What can go wrong |
|---|---|---|
| Assets in your own name | Your will | No will, an old will, or a will revoked by a later marriage |
| Property owned as joint tenants | Passes to the surviving owner automatically | The will can't redirect it |
| Super, including your SMSF | The fund's deed, a valid death benefit nomination, a reversionary pension, or the trustee's discretion | An invalid or lapsed nomination; the wrong person controls the SMSF trustee |
| Life insurance held in super or with a nominated beneficiary | The policy or the fund | Paid to someone you didn't intend, or taxed when it needn't be |
| Family trust assets | The trust deed: the appointor and trustee decide | Control goes to someone by default; the deed has no succession clause |
| Your shares in a trustee or trading company | Your will (the shares are yours) | The company has a sole director and can't act until a new one is appointed |
| Loans you've made to your trust or company | Your will (the loan is an asset of your estate) | The estate demands repayment, or the loan is overlooked |
| Your interest in a partnership or unit trust | The partnership or unit holders agreement, then your will | No buy-out terms; your family is stuck with partners they don't know |
How do testamentary trusts help?
A testamentary trust is a trust created by your will. Instead of an inheritance landing in a child's own name, it lands in a trust they can benefit from. Two things make it valuable:
- Protection. Assets in a well-drafted discretionary testamentary trust are not owned outright by the beneficiary, which can help if they go bankrupt, are sued or separate. How much protection depends on who controls the trust, so the control clauses matter.
- Tax for grandchildren. Income a testamentary trust earns from the deceased estate's property is "excepted income" when it's distributed to beneficiaries under 18. The ATO confirms it's taxed at normal adult rates, not the penalty rates that apply to minors receiving income from a family trust.
Worked example: income for three grandchildren
Hypothetical, rounded. 2026–27 resident rates; penalty rates for minors on the ATO's latest published rates (2025–26).
Say your daughter inherits $1.2 million of investments that earn $60,000 a year. She earns over $190,000 and has three children aged 6, 9 and 12.
| Inherited directly by your daughter | Inherited through a testamentary trust | |
|---|---|---|
| Who's taxed on the $60,000 | Your daughter, at 47% | $20,000 to each child |
| Tax | About $28,200 | Nil. Each child's $20,000 is taxed at adult rates and the low income tax offset covers the small amount above the tax-free threshold |
| If the same $60,000 came from an ordinary family trust | — | About $27,000, because each child's $20,000 would be taxed at 45% |
That's about $28,000 a year, every year until the children turn 18, plus the protection. The money must genuinely be used for the children's benefit. More detail is in our guide to testamentary trusts.
Proposed change, not law: the Tax Reform No. 3 Bill 2026, introduced on 14 October 2026, proposes a 30% minimum tax on discretionary trusts from 1 July 2028, but as introduced it excludes genuine testamentary trusts. We'll watch the final wording.
How do you make sure your super goes where you want?
Super is often the biggest asset that sits outside the will. Two rules decide what happens to it.
Who can receive it is set by super law and the fund's rules: generally your spouse, children of any age, someone financially dependent on you or in an interdependency relationship with you, or your estate.
How it's taxed is set by tax law, which uses a narrower definition of dependant. A spouse, a child under 18, a financial dependant or someone in an interdependency relationship receives a lump sum tax-free. An independent adult child pays tax on the taxable component, at 15% plus the Medicare levy on the taxed element if it's paid to them directly.
| Your $800,000 super (all taxable component, taxed element) goes to | Death benefit tax |
|---|---|
| Your spouse | Nil |
| Your adult son, paid directly | About $136,000 (15% plus 2% Medicare levy) |
| Your adult son, paid through your estate | About $120,000 (15%; no Medicare levy) |
Hypothetical, rounded. Where you have both a spouse or dependent child and adult children, steering super to the dependants and other assets to the adult children through your will can save a lot of tax. Contribution and withdrawal strategies before death are financial product advice, so we work alongside a licensed financial adviser on them.
Death benefit nominations
- Retail and industry funds: a binding nomination generally lapses after three years unless the fund offers a non-lapsing version.
- SMSFs: the three-year rule doesn't automatically apply. Whether a nomination is binding, and whether it lapses, depends on the fund's own deed. A nomination that doesn't follow the deed's formalities exactly can fail.
- Capacity: you must sign your own nomination while you have capacity. An attorney generally can't make one for you.
Our guide to binding death benefit nominations in an SMSF covers the rules. Our SMSF succession guide covers control of the fund.
What happens to your family trust and company when you die?
The trust doesn't die with you, and that's both its strength and its trap.
- Appointor succession. Whoever holds the appointor role controls the trust. The deed should name your successors, or let you name them in your will. If it doesn't, the role may pass to your executor or lapse.
- Trustee company directors. If you're the sole director and shareholder of the trustee company, the company may not be able to act until your shares are transferred and a new director is appointed. An alternate director, or a second director now, avoids a freeze.
- Your shares. The shares in the trustee company pass under your will. Leave them to the person who should control the trust, not split by default among all your children.
- Loans to the trust. If you've lent money to your trust, the loan is an estate asset. Decide now whether it should be repaid, forgiven or left to a particular person.
- Family trust elections. An election stays in force after the test individual dies, and the family group stays tied to them. Distributions outside that group are still taxed at 47%.
- Control and family law. Courts look at who controls a trust when a child separates. Leaving one child as sole appointor of a substantial trust can expose it in that child's separation.
Our trust deed agent reads the appointor, succession and variation clauses and flags the gaps; your accountant confirms them before we brief the solicitor. If you need a trust set up or reviewed, see our family trust setup service.
How do you plan succession for a family business?
Business succession is two transfers: management and ownership. They rarely happen on the same day, and they don't have to go to the same people.
The questions we work through
- Who will run the business? A family member, a manager, or a buyer?
- Who will own it? All the children, the ones who work in it, or a trust that benefits everyone?
- How are the others treated fairly? Other assets, insurance, or a payout over time.
- What if it happens early? A buy-sell agreement between owners, funded by insurance, sets the price and the process if an owner dies or becomes disabled. The agreement is a legal document and the insurance is financial product advice, so a solicitor and a licensed adviser handle those parts.
- What's the tax on handing over? A transfer to your children during your lifetime is generally treated as a sale at market value, even if they pay nothing. The small business CGT concessions, such as the 15-year exemption and the retirement exemption, can reduce or eliminate the gain if you meet the conditions.
Timing matters before 30 June 2027
This is law. From 1 July 2027 the 50% CGT discount for individuals, trusts and partnerships is replaced by indexation for growth from that date. If you planned to hand the business or business premises to the next generation in the next few years, model the transfer before 30 June 2027 against waiting. Sometimes it's worth bringing forward; often the valuation snapshot is enough. Our guide to the 30 June 2027 tax changes explains the rules, and if an outside sale is more likely, see our selling a business service.
Farming families face the same questions with a few extra rules. See our page for farmers and primary producers.
Can someone challenge your will?
Yes. Every state and territory lets certain family members, including adult children, ask a court for more from your estate if they weren't adequately provided for. Time limits are short and differ by state:
| State or territory | Usual time limit | Runs from |
|---|---|---|
| NSW | 12 months | Date of death |
| Victoria | 6 months | Grant of probate |
| Queensland | 9 months to start proceedings (notice within 6 months) | Date of death |
| South Australia | 6 months | Grant of probate |
| Western Australia | 6 months | Grant of probate |
| Tasmania | 3 months | Grant of probate |
| ACT | 6 months | Grant of probate |
| Northern Territory | 12 months | Grant of probate |
Courts can extend these limits in some circumstances. Your solicitor will confirm the rules that apply to you.
In NSW, a court can also treat certain assets outside the estate, including super and assets moved shortly before death, as "notional estate" available to a claimant. We'll flag where that matters; a NSW succession lawyer advises on it. Near-death schemes that gift and lend back assets to empty the estate on paper have been set aside by courts, and we'll tell you so if you've been offered one.
How does estate planning work with BPAG?
- Free strategy call. We find out who's in the family, what you own and what you want to happen.
- Estate map. We list every asset and entity, who controls it and how it passes. Our estate planning check agent compares your will, powers of attorney and death benefit nominations against your structure and flags the gaps for your accountant to review.
- Tax modelling. Super death benefit tax, CGT for beneficiaries, and the value of testamentary trusts for your family.
- Brief to your solicitor. A written brief covering the will, testamentary trusts, appointor succession, powers of attorney and nominations. If you don't have a solicitor, we'll introduce you to one we work with.
- Licensed adviser where needed. For super contributions, pensions, insurance and buy-sell funding.
- Implementation and review. We update entity records, check signed nominations against the fund deed, and revisit the map when your life changes.
Our AI agents draft; qualified accountants review and sign off. Nothing is sent to you or your solicitor without a person approving it.
What does it cost?
Estate and succession planning advice is quoted as a fixed fee once we know how many entities and family members are involved. The solicitor's fees for wills and other documents are separate, and we'll tell you roughly what to expect. Ongoing work sits within your fixed-price plan; see our pricing.
What should you send us?
- Your current will and any codicils
- Enduring powers of attorney and guardianship documents
- Super statements and death benefit nominations for every fund, including your SMSF deed
- Family trust deeds and every variation; company constitutions and share registers
- Partnership, shareholder or unit holder agreements
- Life insurance policies and who they're paid to
- Loan accounts between you and your trusts or companies
- A short family tree, noting anyone with a disability or in a blended family
If a family member has a severe disability, ask us about special disability trusts, which have their own tax and Centrelink rules. If protecting the family from creditors is part of the plan, see our asset protection advice.
Frequently asked questions
Is there inheritance tax in Australia?
No. Australia has no estate or inheritance tax. But tax still arises: super paid to a non-dependant such as an adult child is taxed, and inherited assets usually carry their cost base to the beneficiary, so CGT is paid when they sell. Planning is about who pays tax, when and how much.
How often should I review my estate plan?
Whenever something big changes: marriage, separation, a death, a new child or grandchild, buying or selling a business, or setting up a trust or SMSF. Otherwise every three to five years. Marriage generally revokes an existing will, and divorce cancels gifts to a former spouse, so those events need an immediate review.
Can my accountant write my will?
No. Wills, testamentary trusts, powers of attorney and death benefit nominations are legal documents prepared by a solicitor. We work out what they need to achieve, model the tax, and brief the solicitor so the documents fit your trusts, companies and super.
What happens to my SMSF if I die?
Your super is paid out according to the fund's deed, any valid binding death benefit nomination or reversionary pension, and the trustee's decisions. Who controls the SMSF trustee after your death matters a lot, because the remaining trustees may decide who gets your benefit. Our SMSF succession guide covers this in detail.
Should my children be equal owners of the family business?
Not necessarily. Equal isn't always fair, especially when one child works in the business and others don't. Many families separate ownership from control, or balance the business going to one child with other assets or insurance for the others. It's a family conversation first and a tax and legal one second.
Do testamentary trusts still work if the 2028 trust tax passes?
As introduced, the Tax Reform No. 3 Bill excludes genuine testamentary trusts from the proposed 30% minimum tax on discretionary trusts. That's a Bill, not law, and the final wording may change. We'll keep checking it as it moves through Parliament.
Official sources
General information only, current as at 18 October 2026. It is not personal tax, legal or financial product advice and doesn't take your circumstances into account. Talk to us before you act. Where a recommendation needs a licensed financial adviser or a solicitor, we work alongside them.