Super, Wills & Succession: A Guide for Australian Business Owners Going Offshore

Introduction

When planning an offshore move for your business, it’s easy to focus entirely on tax & structure. The problem is that your superannuation, will, & succession plan are governed by rules that shift in non-obvious ways once you leave Australia, creating significant risks for your estate and family.

This guide explains how moving overseas impacts your personal wealth and legacy, covering the key changes to your superannuation, estate plan, & business succession. Understanding these issues before you depart is critical to ensure your wishes are actually carried out for your beneficiaries & your assets are protected.

Interactive Tool: Check If Your Super & Will Are at Risk Offshore

Why Offshore Moves Complicate More Than Just Tax

The Personal Wealth & Legacy Side Gets Addressed Last & That Is the Problem

For Australian business owners, the structural and tax side of an offshore move tends to get most of the planning attention. The personal wealth & legacy side, including superannuation & estate planning, is often addressed late, if at all.

This creates a significant risk because none of the following pause when you move:

• superannuation;
• your will; and
• business succession plans.

The rules that govern them shift in ways that are not always obvious until something goes wrong, creating complex cross-jurisdictional issues.

What Happens to Superannuation When You Leave Australia

Citizens & Permanent Residents – Super Stays in Australia

For most Australian business owners moving offshore, the rules are straightforward: your superannuation stays locked inside the Australian system. If you are an Australian citizen or permanent resident, you cannot access your super simply because you move overseas. The Departing Australia Superannuation Payment (DASP) is not available to you, as it is designed only for temporary visa holders.

Your super fund continues to operate under Australian rules, charging fees & accumulating earnings, regardless of where you live. Overseas employers are generally not required to make Superannuation Guarantee contributions into it. 

A critical point often missed is the impact on insurance. Income protection & life insurance policies held within your super may lapse or be reduced if the fund’s rules restrict coverage for non-residents. Review your fund’s insurance arrangements before departure. 

Temporary Visa Holders & the Departing Australia Superannuation Payment

For business owners who accumulated superannuation on a temporary visa, the DASP allows withdrawal as a lump sum after leaving Australia & after the visa has expired or been cancelled. This is not a tax-free exit, DASP is taxed at a higher rate than standard superannuation withdrawals. 

The tax treatment of a DASP is a key consideration. For the 2025–26 financial year, the taxed element of the payment is taxed at:

• 35% for most temporary residents; and
• 65% for working holiday makers.

There is a critical timing rule that catches many off guard: DASP eligibility is permanently lost once a permanent visa is granted. If you are a temporary visa holder considering permanent residency but may leave Australia, you must claim your DASP before the permanent visa is granted to avoid forfeiting access to these funds.

Binding Death Benefit Nominations & the Estate Planning Gap

One of the most significant misunderstandings for departing business owners is how superannuation is treated on death. Superannuation does not form part of a deceased estate, meaning it is not controlled by the terms of your will. Instead, the trustee of the super fund distributes the superannuation death benefit according to a Binding Death Benefit Nomination (BDBN).

A BDBN directs the trustee on who should receive your super. However, most BDBNs lapse every three years unless your fund specifically offers a non-lapsing nomination. The consequence of this is severe: a lapsed BDBN gives the trustee full discretion over where your superannuation goes. For a business owner who moves offshore without reviewing their BDBN, this creates a risk that a substantial part of their wealth could be distributed in a way that contradicts their wishes.

How an Offshore Move Affects a Will & Estate Plan

Jurisdictional Validity & the Movable/Immovable Distinction

A will that is perfectly valid in Australia may not operate as intended once foreign assets are acquired. The type of asset & where it is located determines which succession law applies, a distinction that creates significant gaps in a standard estate plan. 

Australian law separates assets into two classes for succession purposes:

1. Movable assets: This category includes items like shares, cash, & bank accounts. The succession of these assets is generally governed by the law of the jurisdiction where the owner was domiciled at their time of death, a detail that underscores the need for strategic residency planning.
2. Immovable assets: This covers real property & land. These assets are governed by the succession laws of the country where the asset is located, regardless of where the owner was domiciled. 

This division means an Australian will may be completely ineffective for dealing with overseas real estate, regardless of how clearly it is drafted. Some countries also enforce forced heirship rules, which legally require a portion of an estate to pass to specific family members, overriding any conflicting instructions in a foreign will.

Why a Single Will Rarely Covers a Multi-Jurisdiction Estate

Relying on a single Australian will to manage an international asset portfolio is a common but flawed strategy. The most practical approach for business owners with assets in different countries is to use concurrent wills, meaning a separate, local will for each jurisdiction where assets are held.

These wills must be carefully coordinated by legal practitioners in each country to prevent one will from unintentionally revoking another. Without a local will, your executor may need to have an Australian Grant of Probate “re-sealed” in the foreign jurisdiction before they can administer any assets there.

This process adds delay, cost, & complexity for your beneficiaries during an already difficult time. A generic clause in a will stating it covers “all my assets” does not reliably extend to foreign real property or shares in an offshore company.

For Australian business owners with a multi-jurisdiction estate, obtaining advice from a legal practitioner in each relevant country is essential to ensure the estate plan works as intended.

Succession Planning for the Business

How Offshore Company Interests Are Dealt With on Death

For Australian business owners with international structures, a standard estate plan often fails to account for how business assets are controlled after death. A critical mistake is assuming an Australian will automatically governs the transfer of shares in an offshore company, in reality, an Australian will may not cover offshore company shares at all.

The succession of company interests is determined by the laws of the jurisdiction where the company was incorporated. This means the rules for transferring shares are found in that country’s laws & the company’s own documents, not in an Australian will. An offshore company’s constitution often includes default rules on share transfers that may not align with a business owner’s wishes for their estate.

Furthermore, a shareholder agreement can completely override an estate plan. These agreements frequently contain clauses such as:

• buy-sell arrangements;
• put or call options; or
• drag-along rights.

Each of these can dictate what happens to a deceased owner’s shares. Without a thorough review, a business owner’s intended beneficiaries may find their inheritance is redirected by corporate documents they never considered.

Powers of Attorney & Incapacity Across Jurisdictions

An Australian Enduring Power of Attorney does not grant authority over offshore company assets or foreign bank accounts. This is a frequently overlooked gap in estate planning for business owners who operate internationally, as each country has its own specific rules for recognising and enforcing powers of attorney created in another jurisdiction.

A business owner who becomes incapacitated without having arranged jurisdiction-specific powers of attorney creates a significant problem. In this scenario, there may be no one with the legal authority to manage the offshore business entities or access foreign assets. This can paralyse the business & create immense disruption for the owner’s family during an already difficult time.

The Four Failure Points That Catch Departing Business Owners

Four specific failure points appear consistently for Australian business owners going offshore. Each is straightforward to fix before departure but becomes expensive and complex to resolve after the move.

1. Relying on a generic Australian will – Foreign real property & offshore company shares are governed by the laws of their own jurisdictions, not necessarily by an Australian will. 
2. Leaving superannuation unaddressed – Failing to review superannuation arrangements is a major gap. A key risk is a lapsed BDBN, which removes your control and gives the fund’s trustee full discretion over the death benefit. Insurance policies held within super may also cease to cover non-residents.
3. Informal business succession plans – Many business owners have succession arrangements agreed in principle, but never formally documented in the company’s constitution or a shareholder agreement. Without a legally binding mechanism, there is no clear process to follow when a succession event occurs, leaving the business and its stakeholders in a vulnerable position.
4. Assuming Australian Powers of Attorney work globally – An Australian Enduring Power of Attorney is not automatically recognised overseas. Without jurisdiction-specific powers of attorney, a business owner who becomes incapacitated may leave their foreign assets legally unmanageable.

How to Get the Personal Side of an Offshore Move Right

Pre-Departure Steps for Superannuation & Estate Planning

For Australian business owners with existing or planned offshore structures, the window to correctly structure your superannuation, will, and business succession is before you leave Australia, not after. Working through a pre-departure checklist is critical to avoid leaving behind a complex and expensive problem for your beneficiaries.

Before moving, work through these five steps: 

1. Review & update your BDBN: Confirm with your superannuation fund whether it offers non-lapsing nominations & ensure your nomination is current to prevent the trustee gaining discretion over the distribution of your death benefit.
2. Review insurance inside super: Check with your fund to confirm whether life & income protection insurance policies will remain valid for non-residents. Some policies contain restrictions that can reduce or void cover once you live overseas for an extended period.
3. Update your will to address foreign assets:Your will needs to specifically address each asset class in each jurisdiction, particularly immovable assets like overseas real estate & shares in offshore companies. 
4. Get local advice in your destination jurisdiction: An Australian will may not be effective for assets located overseas. You should obtain advice from a legal practitioner in your new country of residence to determine if a local will is required.
5. Align your estate plan with corporate documents: Review the corporate constitution and any shareholder agreements for your offshore companies. These documents can contain provisions on share transfers or buy-sell options that may override the intentions in your will.

Ongoing Estate Plan Maintenance After Departure

An estate plan is not a static document, especially for a business owner with assets spread across multiple jurisdictions. Your arrangements need to be reviewed regularly to ensure they remain aligned with your circumstances and the legal requirements of each country where you hold assets.

Your estate plan should be revisited whenever:

• a new, significant asset is acquired in a new jurisdiction, as this may trigger different succession laws;
• a BDBN is approaching its three-year expiry date, to prevent it from lapsing;
• the business undergoes a material structural change; or
• a shareholder agreement is amended, as this can alter succession arrangements for the business itself.

Conclusion

For Australian business owners, an offshore move impacts personal wealth structures like superannuation, wills, & succession just as much as the business itself. Addressing these critical elements of your estate plan before departure is the only way to ensure your assets are protected & distributed as you intend. The business owners who get this right are not the ones who addressed these issues after departure, they are the ones who reviewed their superannuation, will, & succession plan before they left, when the window to act was still open. 

If you are considering an offshore move, discuss your estate & succession plan with WealthSafe’s advisory team. WealthSafe specialises in creating integrated structures that are legally sound & aligned with long-term goals.

Frequently Asked Questions