Updated 22 October 2026
Wills - Potential Problem #30: Underestimating Estate Complexity
A complex estate needs a plan that connects the will with the way assets are owned, the obligations attached to them and the people who will take over. In New South Wales, uncertainty about those details can delay administration, interrupt a business and leave beneficiaries with a different inheritance from the one intended.
Complexity is not confined to wealthy families. A home, a small company, superannuation and an overseas bank account can involve several different legal processes. Professional advice helps identify those processes before a death, while careful administration helps executors deal with them afterwards. Neither a large estate nor a complicated ownership structure automatically makes a will invalid.
Recognise the warning signs
Consider a detailed review if you have a family trust, business partners, assets overseas, substantial borrowing or beneficiaries with competing needs. A blended family, a beneficiary who needs ongoing support, or a promise to leave someone a particular property can also require more careful planning.
Start by asking practical questions. Who owns each asset? Who can manage it after your death? Is money available to pay liabilities without selling something you wanted the family to keep? A will that divides the residue equally does not, by itself, answer those questions. The residue is what remains after the estate’s obligations and earlier gifts have been dealt with.
Check what actually belongs to the estate
The NSW Government’s guide to wills explains why ownership matters. Jointly held land owned as joint tenants normally passes to the surviving owner. A tenant-in-common share normally enters the deceased owner’s estate. Company assets belong to the company, while personally owned shares may pass under the shareholder’s will.
Similarly, property held in a family trust is generally governed by the trust arrangements. Review the deed, amendments, trustee appointments and any powers to appoint or remove a trustee. Record loans owed to you as well as debts you owe. A valuable claim against a company or trustee can be overlooked if the asset list contains only property and bank balances.
A real case involving a family trust and an estate
In Fischer v Nemeske Pty Ltd (2016), a family trust’s assets included shares in a company. Its trustee had recorded a distribution to Mr and Mrs Nemes and later acknowledged a debt to them of approximately $3.9 million. Both died before demanding payment.
Mr Nemes’ will left shares to one group of beneficiaries and the residue to others. A dispute arose over whether the trustee’s earlier arrangements created an enforceable debt owed to his estate. The High Court majority upheld the debt and dismissed the appeal from the NSW Court of Appeal.
The decision concerned the trustee’s powers and the legal effect of its documents. It was not a finding that a homemade will had caused the dispute. Its practical lesson is that the will must be considered alongside trust records and financial arrangements. An old resolution or loan account may materially affect both the estate’s value and the position of different beneficiaries.
Keep the family business operating
Business succession involves more than choosing who inherits shares. Someone must have authority to make decisions, pay employees and deal with suppliers. Review the constitution, shareholder arrangements, banking authorities and any agreement covering what happens when an owner dies.
ASIC explains that, when a proprietary company’s sole director and sole shareholder dies, the executor or administrator can appoint a replacement director under section 201F of the Corporations Act. The executor does not automatically become the director. Identifying the necessary appointment process in advance can help avoid a period when nobody can properly manage the company.
Deal with superannuation separately
As MoneySmart explains, superannuation does not automatically form part of your estate. Check the fund’s rules, eligible recipients and the validity of any death benefit nomination. A valid binding nomination to your legal personal representative can direct payment to the estate for administration under your will; it is not a personal gift to the executor.
In its 2026 review of 45 superannuation trustees, ASIC reported a 10% increase in death benefit claims volumes in the 12 months to October 2025, alongside continuing weaknesses in claims handling. These are superannuation figures, not statistics about contested wills. Keep current fund details with your estate records so a claim can be identified and followed up promptly.
Coordinate overseas assets and wills
Property or accounts overseas may involve local succession rules, tax obligations and additional authority to collect or transfer assets. Give your Australian and overseas advisers copies of every will. A new document should not unintentionally revoke arrangements designed for another country.
The Attorney-General’s Department’s international wills guidance concerns a convention addressing the form of wills. An international will does not remove every foreign ownership or inheritance rule. Coordinate the documents and confirm which assets each is intended to cover.
Plan for tax and cash flow
An estate can hold substantial assets but have little available cash. Prepare a forecast for liabilities and ongoing property or business obligations before promising beneficiaries immediate payment. Obtain valuations and preserve purchase records so the accountant can determine the relevant tax treatment.
The Australian Business Register explains that income earned from estate property or a business after death may require trust reporting. The executor should establish whether a trust tax file number or ABN is needed. A deceased sole trader’s existing ABN cannot simply continue to be used.
Different tax rules have different timeframes. The ATO’s deceased estate tax guidance provides concessional treatment, where applicable, for the first three income years; that is not necessarily three full years after death. Separately, a qualifying inherited dwelling may receive a full capital gains tax exemption if settlement occurs within two years of death. Conditions, alternative exemptions and possible extensions require assessment. There is no universal two-year tax-free period for an estate.
Give the executor a workable administration plan
An executor must identify and protect estate assets, establish liabilities and keep proper accounts. Legal Aid NSW explains that debts are paid before beneficiary distributions and that improper administration can expose an executor to personal liability. Keep estate money separate from personal funds and obtain advice before distributing where claims or liabilities remain unresolved.
Probate is one stage of the process. Legal Aid NSW’s probate guidance says an application should normally be made within six months of death; a later application needs an explanation in the affidavit. This is not a deadline for completing the entire estate. Nor does obtaining probate resolve every ownership dispute or authorise an immediate distribution regardless of other obligations.
Practical steps to take now
1. Prepare an asset and liability register. Record ownership, account details, loans, guarantees and the location of supporting documents. Keep the register current and separate from the signed will.
2. Bring the underlying documents to your adviser. Include trust deeds, company records, super nominations, loan agreements and overseas wills. Summaries alone may miss an important restriction or entitlement.
3. Choose suitable executors and substitutes. Discuss their willingness, availability and ability to manage the task. Consider whether personal interests could create difficulties in dealing with a business or family dispute.
4. Coordinate the implementation. A revised will may need accompanying nominations, corporate appointments or other documents. Confirm that each required step has actually been completed.
5. Review after material changes. Revisit the plan after a business restructure, property transaction, relationship change or beneficiary’s death. Tell the executor where the current documents are stored.
CM Lawyers assists with wills and estate planning and estate administration. Bring your existing will and ownership records so the discussion can address the arrangements your family and executor will actually need to manage.
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