Legal Practice Areas in Australia

The ‘trusts and estates' practice area is a broad one.

At its foundation, the classification focuses on the ‘two life certainties' – death and taxes. In particular, trusts require a deep understanding of the taxation system, while estate planning is centred around wills.

Due to the breadth of potential areas, many lawyers in this area will have particular niche specialisations. Generally, the lawyers profiled will also work collaboratively with other advisers in the clients’ network, for example, accountants, financial planners, risk advisers, financiers, and, increasingly, other lawyers who do not have deep specialisation in this area.

Lawyers working in this area will generally have some experience, if not deep specialisation, in a range of specific areas, including:

• trust administration;
• trustee duties;
• trust interpretation;
• tax planning generally, particularly capital gains tax;
• superannuation, particularly in relation to the payment of death benefits;
• asset protection;
• all forms of inter vivos and testamentary trusts;
• administration of deceased estates;
• winding up of trusts; and
• succession planning, including business succession.

Unlike many comparative areas, lawyers in this area will need to have experience, both in relation to state based legislation (each state has its own rules in relation to trusts and succession) as well as federal legislation (there is commonwealth legislation in relation to taxation, superannuation, and bankruptcy for example).

The range of specific legal documents prepared by lawyers working in this area is extensive. Some examples include:
wills (including testamentary trusts);

• inter vivos trusts (including special purpose trusts across a myriad of areas including disability trusts, generation skipping trusts and lineal descendant trusts);
• powers of attorney, enduring guardianship, and health directive documentation;
• probate and letters of administration;
• various entities, other than trusts such as superannuation funds, companies, foundations, and partnerships;
• business succession agreements;
• family constitutions;
• loan agreements;
• variations to trusts including the extension of vesting dates, winding up of trusts, trust splitting, and trust cloning;
• superannuation death benefit nominations (including binding nominations); and
• revenue related advice in relation to the above areas (including general tax, capital gains tax, and stamp duty).