Wills & Estates
Putting personal legal matters in order is something which is often neglected, because thinking about whether family members will be adequately provided for after the death of a spouse or parent, is a subject which many people find difficult to talk about. Taking care of your affairs now so that things are in place in the event of an accident or death, is the best way you can care for yourself and your family. A Will that has been properly written will ensure the best outcome for the people who you care for the most, particularly where financial matters are concerned.
Without a well written Will in place your hard earned accumulated estate may not pass on to the intended beneficiaries, and could leave your partner and family vulnerable, without financial security. An expensive application to the Court may have to be made for an Administrator to be appointed, so that distribution of your estate could then be made to the beneficiaries. Particularly now with second marriages often resulting in substantially younger children than those from first marriages, dying without leaving a Will could result in the Court distributing the estate equally to all children from both marriages, even though the deceased may have intended to leave a larger share to the younger children of the second marriage, and a smaller share to the adult children of the first marriage.
Don't leave your loved ones with a complicated mess to sort out, speak with us now about planning your estate and protecting your assets and investments with a well thought out Will.
Powers of Attorney
If you find yourself in an unforeseen situation where you are ill or lose mental capacity, or even if you intend to be absent overseas for a long vacation, certain personal, health and financial decisions may need to be made by someone else on your behalf. To safeguard against any of these unforeseen situations you can make an Enduring Power of Attorney while you are fit and healthy, appointing your spouse, close family member or a trusted friend or professional advisor, as your Attorney.
The Attorney would 'step into your shoes' during any period you may find yourself incapable of making important personal, health or financial decisions. These may be simple day to day ones like paying bills, or conducting banking. Other instances may be signing transfer documents for the sale of real estate if you are away on vacation, or signing documents regarding medical treatment. Your Attorney would be excluded from making any "special" decisions however, such as voting, or withdrawing or withholding life support treatment.
Without an Enduring Power of Attorney in place your spouse or family cannot conduct your affairs on your behalf, should you lose the capacity to make decisions because of injury, or a medical condition such as dementia. Contact us about preparing your Enduring Power of Attorney, and avoid putting your family through the stress, complication and expense of having to apply to the Guardianship Tribunal to be appointed as your Guardian, should you find yourself without the capacity to make important decisions.
Advance Health Directives
An Advance Health Directive sets out what medical treatment you do or do not wish to receive, should for example you become terminally ill, or fall into a coma and are unable to make decisions or speak for yourself. It is an excellent way of telling your family and all medical staff involved with your care, how you wish to be cared for and the medical treatment you require. By setting out your wishes in an Advance Health Directive while you are fit and healthy, any trauma or conflict is taken away from family members who may not agree on whether medical treatment should be carried out or even withdrawn, should you become terminally ill.
Speak with us now about putting an Advance Health Directive in place, which along with a Will and an Enduring Power of Attorney will ensure your personal affairs are in very good order.
If you have been appointed as Executor in a Will, you must ensure that the estate is distributed in accordance with the deceased's wishes. Although some tasks like locating the Will and arranging the funeral may be quite simple, other much more complicated ones like interpreting the Will if it is unclear, investing the assets of the estate for the benefit of under age beneficiaries, obtaining Probate, dealing with superannuation and the transfer of real estate, or standing up to a challenge by a person left out of the Will, make it very important to engage a lawyer to assist you with administering the estate.
We work with other professionals such as accountants and financial advisors, to ensure that the maximum amount is available from the assets of the estate for distribution to the beneficiaries. Contact us so we may assist you in deciding what tasks you feel comfortable in carrying out in your role as Executor, or whether you need to employ a lawyer to handle the more complicated ones.
Testamentary Trust Wills
In a traditional Will a husband and wife will leave their estate to each other, and then to their children if both the husband and wife are deceased. Wills incorporating a testamentary trust have now become more popular, particularly because of benefits like tax advantages, and protection of the beneficiary's inheritance from an ex-spouse if the beneficiary divorces, or from creditors if the beneficiary goes into bankruptcy. Sometimes a beneficiary may simply be a spendthrift, or because of disability, unable to properly manage their own financial affairs. A testamentary trust is very beneficial in this instance, because the beneficiary receives an income during their life, which is derived from investment of the estate's assets.
Usually, a trust controlled by the surviving spouse is established, with the spouse and children of the deceased the beneficiaries. The provision for sub-trusts to come into effect for the benefit of each child, should the deceased's spouse subsequently die, can also be incorporated in the Will. The income from the trust which is applied to the benefit of each beneficiary, can often be tax-free, giving great flexibility and enabling the trust to embrace the protection advantages mentioned above, as well as other advantages, such as grandparents being able to set up education trusts for their grandchildren.
Speak with us about the benefits of a Will incorporating a testamentary trust, to protect your assets and maximise tax benefits.
Family Discretionary Trusts, Unit Trusts & Companies
There are various types of trusts which can be set up to meet your personal or business requirements, but the most popular trusts are -
A Family Discretionary Trust
This type of trust will give you a lot of flexibility for the distribution of income, to reduce the amount of tax which is payable.
A Unit Trust
This is a trust which has a fixed allocation of profits and capital, and is usually set up in partnerships between non-family members to give certainty of income and capital distribution.
There are other types of trusts which are available, and we will discuss these with you in conjunction with a specialist accountant if this is the best way to meet your particular needs.
A shelf company can be purchased quickly, which can be used as the avenue through which your business will trade, or act as trustee of a trust if that is also required.
Although entering into a written partnership agreement is very important, to spell out the basic partnership arrangements like profit sharing and the duties of each partner, the most important item which should be covered is what will happen if the partnership dissolves. A partnership agreement should definitely be in writing and signed by the parties in the early stages.
Contact us to discuss putting a partnership agreement in place with your business partner, to avoid the mess of having to sort things out should your partnership break down.
When recovering debts it is very important to move quickly and firmly against the debtor. If too much time is allowed before taking recovery action, the debtor may get into financial trouble and before you know it, go into bankruptcy or liquidation. Along with you we will work expeditiously to recover money you are owed.
When initially assessing whether it is worthwhile taking recovery action, we recommend that you ask yourself, "does the debtor have the capacity to pay me if I put the pressure on?" If at the end of the day there is no prospect of getting paid, there is no point in building up legal expense, but before you decide to let the debtor off the hook speak with us first about the prospects of recovery, so we can help you assess the situation.