If you are a business owner or property investor in Queensland and hold assets through a company or trust, having a clear and coordinated succession plan is essential. Relying on your Will alone can leave serious gaps. Key responsibilities such as company control, share transfers, trustee roles and asset distribution are usually governed by other documents. These may include the company constitution, shareholders agreement, trust deeds and powers of attorney.
Even with a well-prepared Will, if these documents are not aligned with your intentions, your succession plan may not work as desired. A coordinated approach is essential to ensure your decisions are respected and your legacy is protected.
Where a Will Falls Short for Company and Trust Owners
A Will generally covers your personal estate, such as assets held in your own name. However, company shares, trust assets and directorships are typically managed by separate legal structures.
In a commercial context, control and succession are guided by:
- The company constitution
- Shareholders agreement
- Trust deed (where relevant)
These documents determine how decisions are made, who takes over responsibilities and how ownership or control is transferred. If your Will outlines one plan but your company or trust documents say something different, confusion or legal disputes can follow. To avoid this, all documents must work together to support a consistent outcome.
Your Constitution Sets the Rules
The company constitution outlines how the business operates. It defines key processes such as voting rights, appointing directors and transferring shares. If it does not address succession, or is out of date, control may pass in a way you did not intend.
Reviewing and updating the constitution ensures that it reflects your current goals and supports a clear handover when needed.
A Shareholders Agreement Adds Clarity
A shareholders agreement provides practical guidance for what happens when a shareholder leaves the business due to retirement, incapacity or death.
It can set out:
- Terms for buying out a shareholder’s interest
- Rules for decision-making and control
- A process for introducing new owners
- Dispute resolution procedures
This agreement helps protect the interests of all parties and provides structure during challenging times.
Why Businesses With Multiple Owners Need Extra Planning
If your company or trust has more than one controlling party, sch as co-directors, co-trustees or multiple shareholders, planning becomes even more important. Without a clear plan, a deceased or incapacitated person’s interest may pass to family members with no business experience, creating tension or uncertainty.
One effective solution is a buy-sell arrangement supported by insurance. This allows remaining business owners to purchase the departing person’s interest using insurance proceeds. It provides stability for the business and fair value for the exiting party’s estate. Documenting these arrangements early makes them more effective.
The Role of Powers of Attorney
Succession planning also prepares for the possibility that you may be unable to manage your affairs during your lifetime.
An Enduring Power of Attorney allows a trusted person to make personal, legal and financial decisions on your behalf. A separate Company Power of Attorney can authorise someone to manage company decisions.
Putting these documents in place ensures that decisions can continue without disruption if you become unable to act.
When Trusts Are Part of the Structure
If a discretionary or unit trust is part of your business or property structure, succession planning must consider how control of the trust will pass. This usually involves reviewing the trust deed and identifying who will become the new appointor or trustee when you are no longer in that role.
Trusts do not pass through your Will in the same way as personal assets. Planning for who controls the trust and how beneficiaries are treated is essential to prevent delays, disputes or unintended outcomes.
Using Testamentary Trusts for Greater Flexibility
A testamentary trust is created within your Will and begins after your death. It gives your beneficiaries more protection and flexibility than a direct gift.
These trusts can help:
- Manage funds for children or vulnerable family members
- Allow income and capital to be distributed over time
- Support long-term financial strategies, in consultation with your accountant
- Minimise disputes among beneficiaries
Testamentary trusts are especially valuable when your estate includes business or investment assets.
How to Bring It All Together
1. Review Your Documents: Check that your Will, constitution, shareholders agreement and trust deeds reflect the same goals and do not contradict one another.
2. Appoint the Right People: Choose successors who can manage responsibilities across business, trust and estate matters. This includes attorneys, trustees, executors and company officers.
3. Work With a Professional Team: We assist with the legal aspects of succession planning and collaborate with accountants, financial planners and insurance specialists to ensure your plan is practical and coordinated.
Next Steps to Take Control
Without a structured plan, your business or investment assets may not pass to the right people or could be delayed by avoidable legal issues.
Start by:
- Reviewing your company and trust structures
- Updating your shareholders agreement or trust deed
- Putting in place powers of attorney for business and personal decisions
- Considering a testamentary trust for greater flexibility
- Coordinating your Will with your legal and financial advisers
Early planning helps secure your legacy and supports the people and structures you care about most.
Ready to Get Your Succession Plan in Place?
Whether you are a business owner, a property investor or both, we can help you create a succession plan that protects your interests and supports the people who matter to you.
Contact us today to book a consultation and start building a plan that works for you, your business and your legacy.
Frequently Asked Questions (FAQs)
Can my Will decide who takes over my company or trust assets?
Not entirely. While your Will can transfer personally owned assets or shares, control of a company or trust usually depends on other documents like the company constitution or trust deed.
Why is a Shareholders Agreement important in a Succession Plan?
It sets clear rules for what happens to a shareholder’s interest if they leave, become incapacitated or pass away. This helps avoid disputes, ensures shares are transferred properly and keeps the business running smoothly during a transition.
Why does a company need a Power of Attorney (POA)?
A company POA allows a trusted person to act on behalf of the company if a director is unavailable or unable to manage affairs. It helps ensure decisions can still be made, contracts can be signed and operations continue without delay.
How does a testamentary trust protect my legacy?
It gives your beneficiaries added protection by controlling how and when they receive assets. It can help safeguard inheritances from disputes, protect vulnerable family members and support long-term financial goals.
What role does my accountant play in succession planning?
Your accountant helps structure the financial and tax aspects of your plan. They work alongside your lawyer to ensure everything aligns and supports your overall goals.
How can a lawyer help with my succession plan?
At Ardor Legal, we help you create a succession plan that works in practice, not just on paper. We prepare or review key documents like your Will, powers of attorney, shareholders agreement and trust deeds, making sure they are legally aligned and reflect your intentions. We also work with your accountant or adviser to ensure your plan is complete, coordinated and future-ready.
