Estate and business succession planning means deciding who will own and run your family business when you retire, lose capacity or die. How that works depends on the structure. Your will can pass on a sole trader's assets, a partnership share or company shares. It cannot pass on property you hold as a trustee, such as family trust assets.
Estate and business succession planning means deciding who will own and run your family business when you retire, lose capacity or die. How that works depends on the structure. Your will can pass on a sole trader’s assets, a partnership share or company shares. It cannot pass on property you hold as a trustee, such as family trust assets.
General information about Queensland law. It is not legal advice or tax advice. See the note at the end.
In this guide
Only partly. It depends on how the business is held. Your will can deal with property you own when you die. So it can pass on a sole trader’s business assets, your share of a partnership and your shares in a company. It cannot give away property you hold as a trustee. That means the assets of a family (discretionary) trust pass under the trust deed, not under your will.
These rules are in the Succession Act 1981 (Qld) (s 8(1), (5)). Also:
Many owners hold a mix: land in their own names or as joint tenants, the business in a company, and investments in a family trust. Each part follows its own rule, so read your will and business documents together.
What is the best way to leave your assets to your children? There is no single answer. It depends on what you own, how it is held and your family. Work out which structure holds what, then look at making or updating your will. Executors can check whether probate is needed.
A sole trader is the business, so the owner carries its debts and the assets pass under the owner’s will. Partners share control and debts, and a partner’s death usually ends the partnership. A company is a separate legal person that carries on after an owner dies. A family trust is run by its trustee under a deed, and the deed decides who takes control.
Sections in the company column are from the Corporations Act 2001 (Cth). A “replaceable rule” is a default rule in that Act that a company’s constitution can displace or change (s 135(2)).
| Sole trader | Partnership | Company (Pty Ltd) | Family trust | |
|---|---|---|---|---|
| What it is in law | You, trading in your own name | People carrying on a business in common with a view of profit (Partnership Act s 5(1)) | A separate legal person from registration (ss 119, 124(1)) | A trustee holds assets for the beneficiaries under a deed. The trust is not a separate legal person |
| Who owns the business assets | You | The partners, for the partnership (s 23(1)) | The company, not the shareholders (ASIC) | The trustee, for the beneficiaries |
| Who carries the debts | You, personally | Every partner, jointly, for debts incurred while a partner (s 12(1)) | The company. A shareholder need not contribute more than any amount unpaid on their shares (s 516). Directors can be liable for insolvent trading (s 588G) and on guarantees they sign | The trustee, who may be reimbursed from trust property for expenses reasonably incurred (Trusts Act 2025 s 149) |
| Who makes decisions | You | Each partner may take part in management, unless agreed otherwise (s 27(1)(e)) | The directors (s 198A, a replaceable rule) | The trustee. The deed usually lets an appointor remove and appoint the trustee |
| Key documents | Business name and ABN records, contracts, asset lists | Any partnership agreement (not required by law) | Constitution or replaceable rules (s 134), share register, any shareholders agreement | The deed and every variation, appointor details, trustee company records |
| Registration | No separate legal entity is formed | None for an ordinary partnership. A limited partnership is formed on registration (ss 49, 50(1)) | With ASIC (s 119) | Set up by deed, not registered with ASIC. A trustee company is registered (s 119) |
| If the owner dies | The assets pass under the will (Succession Act s 8(1)) | It ends unless agreed otherwise (s 36(1)). The share is a debt owed to the estate (s 46) | It carries on. Shares in the owner’s sole name go to the executor; joint shares go to the survivor (s 1072A). A sole director-shareholder’s personal representative can appoint a director (s 201F(2)) | It carries on. The will cannot pass trust property (Succession Act s 8(5)). The deed and appointor decide control, with Trusts Act fallbacks (ss 20, 21, 38) |
| If the owner loses capacity | An attorney under an enduring power of attorney can act on financial matters (Powers of Attorney Act 1998 s 32) | A court may dissolve it if a partner is of permanently unsound mind (s 38(a)) | The person entitled can be registered as the holder or transfer the shares (s 1072D(1)). Sole director-shareholder: s 201F(2)(b) | The appointor can replace a trustee who cannot act (Trusts Act s 20(1)(e), (3)(a)). Last trustee: s 22, for trusts created on or after 28 April 2026 (s 228) |
Tax, stamp duty and super matter too. Ask your accountant or financial adviser about those.
As a sole trader, you and the business are the same legal person. You own the tools, vehicles and stock, you sign the contracts, and you are personally responsible for the business debts. When you die, those assets pass under your will like your other property. There is no company or deed to carry the business on, so your executor has to deal with it as part of your estate.
This follows from Succession Act s 8(1). A child cannot simply take over: your executor sells or transfers the vehicles, plant and tools as your will directs. If you want a particular child to have them, your will needs to say so. See what an executor does.
Unless your partnership agreement says otherwise, a partnership ends when any partner dies. The surviving partners then need to wind it up or agree terms with the estate. The estate stays liable for partnership debts from the time the person was a partner, and the deceased partner’s share becomes a debt owed to the estate. A written agreement can give the others an option to buy that share, so the business can keep going.
A partnership is “the relation which subsists between persons carrying on a business in common with a view of profit” (Partnership Act 1891 (Qld) s 5(1)). It does not need to be written down, which is why many family partnerships have no agreement. The rules on death are in s 36(1) (dissolution, subject to any agreement), s 12(1) (the estate’s liability for unpaid partnership debts) and s 46 (the share as “a debt accruing at the date of the dissolution or death”). Partnership property pays the firm’s debts first (s 42). If the survivors keep trading without settling up, the estate may be entitled to a share of the later profits, or to interest instead (s 45(1)).
Without an agreement, partners share profits equally, each may take part in management, and “no person may be introduced as a partner without the consent of all existing partners” (s 27(1)(a), (e), (g)). So a son or daughter cannot step into a parent’s place as a partner unless every partner agrees.
No law requires one. Without one, the default rules apply and a death ends the partnership (ss 27(1), 36(1)). An agreement can deal with death, loss of capacity and retirement, give the other partners an option to buy the share (s 45(2)), set how the price is worked out, and say who can join and how decisions are made. How a buy-out would be funded, for example through insurance, is a question for your financial adviser.
A company is a separate legal person, so it does not end when an owner dies. Your shares pass under your will, unless you hold them jointly. The company deals with your executor, who can be registered as the owner of the shares or transfer them. If you were the only director and the only shareholder, your executor can appoint a new director. The constitution and any shareholders agreement can limit who may own the shares.
If you own a company with others, read what a shareholders agreement should say about death and exits.
Not by itself. A company’s debts are the company’s, and a shareholder generally does not have to pay more than any amount unpaid on their shares. But a director can be personally liable if the company keeps trading while insolvent, and many owners sign personal guarantees for leases, loans and suppliers. No structure can guarantee that a particular asset is safe, so ask your lawyer and accountant about your situation.
The shareholder rule is in s 516. A director breaches s 588G(2) by failing to prevent the company taking on a debt while it is insolvent, if they knew, or a reasonable person in their position would have known, that there were grounds to suspect it. The liquidator can then recover the loss from that director (s 588M(2)). Read about personal guarantees on a lease.
Directors must use reasonable care and diligence, act in good faith in the company’s best interests and for a proper purpose, and must not misuse their position or company information. They also have a duty to stop the company taking on debts while it is insolvent. These duties apply to any family member you make a director, so explain them before they agree. The duties are in ss 180(1), 181(1), 182(1), 183(1) and 588G.
The assets of a family trust are held by the trustee, not owned by you, so your will cannot give them away. Control passes under the trust deed. Many deeds name an appointor, a person who can remove and appoint the trustee. If the trustee is a company, control also follows that company’s shares and directors. So the key questions are who will be appointor, who will control the trustee, and what the deed allows.
The Trusts Act 2025 (Qld) defines an appointor as “a person nominated in the trust instrument for the purpose of appointing new trustees of the trust” (schedule 1). If a trustee dies, cannot act, is removed under the deed or another listed event happens, the appointor may appoint a replacement, including themself unless the deed says otherwise (s 20(1), (3)(a), (4)). Any wider power to remove a trustee comes from the deed, not the Act.
Your will can still pass property you own personally, such as money you lent to the trust or your shares in a trustee company (Succession Act s 8(1)). Those shares follow the company rules above. Some deeds also let your will name who takes over a role such as appointor. Not every deed does, so read yours.
A testamentary trust is different: your will creates it, and it starts after your death. Read more about trusts created by a will, or see our page on family trust and company structures.
The Act started on 28 April 2026. It applies to trusts made before or after that date, except where the Act or another Act says otherwise (s 3(1)). It replaced Queensland’s earlier Trusts Act (s 220), so older guides may describe old rules.
A stroke or dementia can stop a business as surely as a death. An enduring power of attorney lets you choose who will manage your financial matters, and it keeps working if you lose capacity. It may not reach every business role, such as director or appointor, so check your company documents and trust deed too. In a partnership, a court can end the partnership if a partner permanently loses capacity.
The enduring power of attorney rules are in the Powers of Attorney Act 1998 (Qld) s 32(1)(a), (2). Power for financial matters starts when the document says, or once it is made if it says nothing (s 33(1), (2)). Two cases need care:
Line up your enduring power of attorney with your business documents, so the people you choose can actually act.
You can hand over a business during your life by selling or transferring the business assets, your partnership share, your company shares or control of the trust. Each needs its own documents, and most need other people to agree, such as the other partners, the directors or the trustee. A transfer can also bring tax, duty and lease consent issues. Get your lawyer and accountant working together before you agree a price.
Selling a family business to family members follows the same legal steps as any other sale:
If one child gets the business, your will may need to balance that for the others, and it helps to know how family members can challenge a will. Parents and children may each need their own advice, because what suits one may not suit the other.
They may be able to. In Queensland, a spouse (including a de facto partner), a child (including a stepchild or adopted child) or certain dependants can ask the court to order provision from your estate if your will does not adequately provide for them. Orders are made out of your estate, and property you hold as a trustee does not pass under your will. Whether a business asset is part of your estate depends on how it is held, so get advice on your own situation.
See who can contest a will and time limits to contest a will.
Bring the papers that show how the business is held and who controls it. That usually means the company constitution and share register, any shareholders or partnership agreement, the trust deed with every variation, the names of the appointor and trustee, loan account balances, leases and guarantees, your current will and your enduring power of attorney.
Questions to think about before the meeting
When to look at it again. Review your structure and your will together when a child joins or leaves the business, a partner retires, dies or falls ill, someone in the family marries or separates, you sell, restructure, sign a new lease or guarantee a loan, or you get a serious diagnosis.
To talk about your business structure and your will, call Catton Roderick Lawyers on 1300 673 792.
Yes, if they are in your name alone. Shares are your property and pass under your will (Succession Act s 8(1)). Shares you hold jointly go to the surviving holder instead (Corporations Act s 1072A(5)). The company deals with your executor, who can be registered as the owner or transfer them (s 1072A(2)). The constitution or a shareholders agreement may limit who can hold them, and directors of a proprietary company can refuse to register a transfer (s 1072G).
Not the trust’s assets. A will cannot dispose of property you hold as a trustee (Succession Act s 8(5)). What you can plan is who controls the trust after you, meaning the appointor and the trustee, as far as the deed allows. Read your deed with your lawyer.
Unless the partnership agreement says otherwise, it ends (Partnership Act s 36(1)). The estate is owed the deceased partner’s share (s 46) and stays liable for debts from the time the person was a partner (s 12(1)). An agreement can give the others an option to buy the share (s 45(2)).
There is no one right answer, and the tax side is for your accountant. In law, a company is a separate legal person and a shareholder’s liability is limited to any unpaid amount on their shares (Corporations Act ss 119, 516). But directors have duties and often sign personal guarantees. A company also carries on after an owner dies, which can make a handover simpler.
No one can promise that. Family provision orders are made out of your estate (Succession Act s 41(1)), and trust property does not pass under your will (s 8(5)). But family members may still apply, and how your assets are held is only part of the picture. See who can contest a will, and get advice on your own situation.
To talk about your business structure and your will, call Catton Roderick Lawyers on 1300 673 792 or email info@cattonroderick.com.au. Dr Darren Catton, the firm’s principal, handles our commercial work and our trust and estate planning work. He is a full member of the Society of Trust and Estate Practitioners (TEP). We see clients at our Caboolture office (Unit 3, 9 East Street) and our Redcliffe office (First Floor, Cominos Arcade, 133 Redcliffe Parade), and in Birtinya (Sunshine Coast) and Brisbane by appointment.
You can also send an enquiry through our contact page.
This page is general information about Queensland law as at 27 September 2026. It is not legal advice about your situation. Time limits apply, so please get advice about your own circumstances.
Last reviewed: 27 September 2026
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