In short
A Will is essential, but it doesn’t by itself transfer control of every company, trust or superannuation interest. Your plan needs to align who can operate the business with who should receive its value.
Why aren’t your business and estate always the same thing?
A company is a separate legal entity. It owns its assets and owes its liabilities. If you personally own shares, your Will can deal with those shares, but it doesn’t directly give away the company’s bank account, equipment or contracts.
A discretionary trust works differently. You may control it through an appointor role, an individual trusteeship, or shares and directorships in a corporate trustee. The trust assets are not automatically personal assets your Will can distribute. Future control depends on the trust deed and succession provisions for each role.
Superannuation also sits outside your Will unless the fund trustee pays the death benefit to your legal personal representative. The aim isn’t to make everything pass through your Will. It is to make sure each asset and each right to control the business reaches the person you intended under the document that actually governs it.
Who should receive value, and who should make decisions?
Those questions can have different answers. You may want your spouse to receive the value of a trading company while a co-owner or experienced manager makes immediate operational decisions.
A Will leaving the shares to your spouse addresses value. It does not necessarily create a workable handover on the morning after your death. Someone still needs authority to deal with staff, banking, customers and urgent contracts.
If the person who dies was the only director and only shareholder of a proprietary company, section 201F of the Corporations Act 2001 permits the executor or administrator appointed to administer the estate to appoint a new director. Without a Will, the wait for letters of administration can leave the company unable to trade or pay bills for some time. The constitution, company register and appointment arrangements belong in the estate-planning review.
What if you lose capacity rather than die?
An enduring power of attorney can authorise another person to manage financial and legal affairs if you lose capacity. It ends on death and does not automatically make the attorney a company director.
Whether an attorney can exercise shareholder rights depends on the power’s terms and the company’s governing documents. Section 201F has a separate incapacity mechanism: a personal representative or trustee must have been appointed to administer your property before that person can appoint a director. For a sole-director company, access to the owner’s personal bank account does not solve an inability to approve company payments or contracts.
Your enduring power of attorney and director-succession position therefore need to work together.
How can company documents change the plan?
A constitution or shareholder agreement may regulate what happens to shares after death or permanent incapacity. It may contain transfer procedures, valuations, pre-emptive rights or an insurance-funded buy-sell arrangement.
Problems often arise because the Will, company documents and insurance arrangements were prepared at different times and no longer describe the same outcome. A Will may expect children to keep shares while the shareholder agreement requires a sale to the surviving owner. If price, funding and timing do not align, the family may receive less liquidity than expected and the surviving owner may be unable to fund the transfer.
Review the shareholder agreement against the estate plan’s intended result. The solution may involve the commercial agreement, funding and ownership structure as well as the Will.
What happens to a family or discretionary trust?
A Will cannot distribute trust property as though you owned it personally. The trust deed determines who can appoint or remove the trustee, what happens to an appointor or guardian role, and how a corporate trustee is controlled.
If you own shares in the corporate trustee, those shares may enter your estate, but ownership of the trustee company is not the same as beneficial ownership of the trust assets. Generic wording can give you false confidence: saying that you “leave the family trust” to someone may not transfer the power to control its trustee or distributions.
Start with the practical result: who should control the trustee, who should benefit from the trust and what protection is needed if they are different people?
How does super fit with the plan?
Your Will controls a super death benefit only if the fund trustee pays it to your legal personal representative. A valid nomination may instead direct payment to an eligible dependent.
That choice can affect tax, timing and claims against the estate, so coordinate the nomination with legal, financial and tax advice.
What does an aligned plan look like?
Start with the result:
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who should make urgent decisions during incapacity
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who should control the business after death
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who should receive its value, and
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how any required buyout will be funded
The review then follows each part of that result through the document that controls it.
Your Will deals with personally held assets and shares. Company control depends on the Corporations Act, constitution and shareholder arrangements; trust control depends on the deed and trustee structure; incapacity engages both the enduring power of attorney and company governance; and superannuation follows the fund rules and any valid death-benefit nomination.
This is narrower than a general wills and estate-planning review. It focuses on where personal planning meets the legal structure of your business.
What should you decide next?
Decide separately who should run the business and who should receive its value. Once those outcomes are clear, the Will, power of attorney, company records, shareholder agreement, trust deed and super nomination can be tested for consistency.
To coordinate your business and estate documents, contact Biz Lawyers & Advisory or call 1800 893 836.
This article provides general information, not legal, tax or financial advice. Outcomes depend on the structure, governing documents and circumstances.
Primary sources
Law and guidance checked 13 August 2026.
