Until recently, Frequent Flyer or “Travel Points” were lost with the cancellation of accounts after death.
As of November 2023, Qantas updated its policy to allow the transfer of a deceased member’s points to an “eligible family member”. Previously, these points were automatically forfeited upon the member’s death. Virgin Airlines also allow transfer to another family member.
There are specific rules regarding:
- the eligibility of potential transfer recipients;
- the process for requesting a points transfer; and
- the timing of requests.
If this is important to you (or your family!), check the membership policy of your airline’s program to ensure points can be transferred after you die.
Airlines will not hold travel points indefinitely (typically they need to be transferred within 12 months of death) and will require documentation to support a request for points transfer.
Some airlines have friendlier policies than others, which may sway your decision as to which program to join (although such policies can always change).
Many international airlines are less considerate, cancelling accounts upon notification of death. They often hold discretion to allow for a transfer of travel points upon request, so consider asking the question of the airline.
Have you planned your digital legacy?
Digital accounts come in many forms: email, social media, document storage, photo storage, health records and entertainment accounts.
Creating a list, often known as a ‘Digital Asset Inventory’, for your attorney or executor will help them to locate and manage your digital assets after your incapacity or death.
While preparing your list, look out for ‘estate’ tools connected to accounts, like the ‘Inactive Account Manager’ function for Google and ‘Legacy Contact’ for Apple and Facebook. Make a note on your list if you are using these functions so that your attorney and executor know.
If you have accounts in your name that you share with others or have been used to set up multiple devices, make sure you understand what happens if you lose capacity or when you pass away. It can be difficult for family members if they get locked out of accounts and cannot use devices or access documents.
A related but separate issue is digital investments such as crypto currencies like Bitcoin and Ethereum. If you hold these types of investments, consider how to securely pass on important information, such as passwords.
ATO fires a warning shot across testamentary trusts
In a move that has surprised the legal industry, in January 2026 the Australian Taxation Office (ATO) issued a Draft Taxation Determination (TD 2026/D1) setting out limitations on the ability for a testamentary trust to hold a property and continue to receive the main residence exemption from capital gains tax (CGT exemption).
What is the CGT exemption?
Generally speaking:
- Individuals who live in a property they own are entitled to an exemption from CGT when the property is sold.
- If a property is held by a trust, the CGT exemption is not available, even if a trust beneficiary lives in the property. However, if a beneficiary of a deceased estate is given a “right to occupy” a property under the Will, the CGT exemption will be available.
What is the ATO now saying?
The ATO’s draft determination says the Will must give the beneficiary an “express right” to reside in the property – it cannot be subject to the trustee’s discretion. In our view this is not contentious, although some poorly written Wills are going to fall foul of this rule.
Controversially, however, the ATO’s draft determination goes further to say that the right to occupy must be given in the Will itself, not in the testamentary trust rules which, the ATO say, are not part of the Will. In our view, this is not correct. Leading industry bodies such as Law Societies, The Taxation Institute and the Institute of Chartered Accountants have lodged submissions disputing the ATO’s interpretation.
It is quite possible that the ATO will change this element of the draft ruling before it is finalised.
We are confident that the testamentary trust Will used by our firm complies with all aspects of the draft ruling. If this view changes, we will inform clients.
Apart from the dubious reasoning of the ATO, the draft determination signals another concern. Trusts, including testamentary trusts, are in the headlights of the Federal Government. The upcoming budget may well introduce other changes to how trusts are treated for tax purposes. If this happens, we will issue a special budget newsletter informing you of these changes.
Do you have the original trust deed for your Family Trust or SMSF?
It is not uncommon for clients to lose track of the original trust deed for their family trust or self managed superannuation fund (SMSF). If you are in this category we strongly recommend you act now and locate the original deed.
The first reason this is a problem…
Financial institutions are ramping up their “know your client” compliance audits, which are overseen by AUSTRAC to counter money laundering, counter terrorism and other crimes such as human trafficking. (Australian institutions have been slow to adhere to these standards compared to overseas institutions.)
Institutions are now requesting to see the original deed to confirm who the trustee and trustee directors are, and who the key beneficiaries are. In some cases, they may accept a certified copy made less than 2 years prior, but the need to locate the original deed will still be essential because the date of the certified copies will eventually extend pass this timeline.
If you cannot supply the deed, you risk bank accounts or investment accounts being frozen.
The second reason this is a problem…
A disgruntled trust beneficiary or SMSF dependent can use the absence of a deed to argue that there have been errors in past distributions or administration, opening an avenue for transactions to be reversed, adverse taxation consequences (including penalties) and even the premature winding up of the trust.
What to do if you do not have the original deed
Conduct a thorough search and reach out to past advisers including the firm who first set up the family trust or SMSF.
If that fails to locate the deed, there may be other avenues to rectify the situation. In some cases, an application to the Court to approve a “likely” deed, or approve the trustee’s reliance on same, might be the only solution.
Our lawyers can assist you if you need to go down that path.