FAQs

ESTATE PLANNING & POWER OF ATTORNEY FAQS

Estate Planning

Who can make a Power of Attorney or Guardianship?

Anyone over the age of 18 who has the capacity to understand the nature and consequences of the document, who makes the decisions in the document of their own free will and who can communicate clearly what those decisions are.

When should I make a Power of Attorney & Appointment of Enduring Guardianship?

Before you need them! These documents safeguard your interests in the event of something unforeseen – an accident or illness that robs you of your capacity to make decisions for yourself. It is better to be prepared and confident in knowing that the person you choose will be making important decisions about your money, your living arrangements and your health.

When does it start?

For a Power of Attorney (Financial) it begins when you nominate that it should. Powers of Attorney (Medical Treatment) and Powers of Attorney (Guardianship) only commence when you are unable to make your own decisions.

Who should I appoint to be my Attorney or Guardian?

You need to appoint someone your trust to make the right decisions. With a General Power of Attorney and an Enduring Power of Attorney (Financial) you can appoint more than one person to make the decisions jointly.

What are the legal responsibilities of my Attorney?

They are legally responsible to you and must act in your best interests. While you have mental capacity they must obey your instructions. They cannot give gifts to themselves or to anyone else unless you specifically authorise this and they must keep their finances and money separate from yours, keeping accurate records of all of their dealings with your money.

Who should I talk to about it?

It’s really important that you discuss these documents with a lawyer who can give you professional advice about your particular circumstances. It’s also vital that you discuss your wishes with your family to avoid unnecessary conflict and stress.

Do I need a witness?

Yes, these documents need to be witnessed by a person with statutory authority such as a solicitor.

Can I change my mind?

Yes, as long as you still have the decision-making capacity to do so you can revoke or change these documents. This has to be done in a legally binding way, however, so please seek legal advice.

Estate Administration

ESTATE ADMINISTRATION FAQs

Are you a Will Executor?

Have you been chosen by a family member or friend to be the Executor of their Will? This means that you have been given responsibility to manage their estate according to the terms they’ve outlined in their Will and to protect their assets under the various laws and rules that govern estate administration in Australia.

Executor Duties

An executor’s duties may include responsibilities such as:

Organising the funeral, notices for the paper, flowers
Locating the Will
Obtaining a copy of the Death Certificate
Making sure any property and assets are safe and secure
Determining the value of assets
Applying for Probate
Paying insurance policies, debts and taxes
Collecting monies belonging to the deceased from financial institutions and insurance companies
Collecting debts owed to the deceased
Lodging tax returns for the deceased and for the estate
Selling properties and assets
Reporting to beneficiaries
Distributing the proceeds of the estate to beneficiaries
Setting up trusts

Being an Executor can be overwhelming, particularly when you are grieving, but rest assured we can guide you through.

Do Executors get paid?

It depends. If you are a beneficiary of the will it is presumed that your benefit will cover your costs. If you’re not a beneficiary then you can apply to the Supreme Court for commission.

Do I need a Lawyer?

Estates vary in complexity and Executor’s duties can be complicated, so it may be a good idea to get advice from a lawyer. The cost of legal advice is usually covered by the estate, not the Executors.

What is Probate?

Probate is recognition of the Will’s validity and permission from the Supreme Court for the Executors named in the Will of the deceased to carry out their duties in relation to the Estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling property and obtaining bank funds.

What if there is no Will?

This situation is referred to as intestacy and the law determines how assets will be shared out after debts have been paid. If you are the next of kin you can apply for Letters of Administration, which will give you authority to finalise the estate.

What if I’m not up to the job?

Just because you have been named an Executor doesn’t mean you have to accept the responsibility. If there is another Executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else. You cannot change your mind later though – giving up the responsibility is final.

Challenging A Will

CHALLENGING A WILL FAQs

Can I challenge a Will?

If you’ve been left out of a Will, or have been unfairly treated in terms of the amount of your inheritance you may be able to make a claim against the estate.

Who can dispute a Will?

In Victoria, some of the people who may be entitled to claim include people who had a relationship with the deceased such as:

a spouse or domestic partner of the deceased at the time of the deceased’s death;
a child or stepchild of the deceased;
a child of the deceased, including an adopted child or stepchild who, at the time of the deceased’s death, was under the age of 18 years, a full-time student aged between 18 and 25 years or under a disability;
a person who, for a substantial period during the deceased’s life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child;
a person who, for a substantial period during the deceased’s life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child who, at the time of the deceased’s death, was under the age of 18 years, a fulltime student aged between 18 and 25 years or under a disability;
a former spouse or domestic partner of the deceased, if a property settlement was not reached with the deceased following their separation;
a registered caring partner of the deceased;
a grandchild of the deceased;
a spouse or domestic partner of a child of the deceased, if the child dies within one year of the deceased’s death; and
a member of the household of which the deceased was, or had been in the past and would have likely been in the near future, also a member

This is a very general guide only so please contact us to discuss your particular circumstances.

Is there a time limit?

Yes, there is. You have only 6 months after the date of the grant of probate of the will or of letters of administration to make a claim. In certain circumstances, we might be able to obtain an extension of the time limit so please contact us to discuss your situation.

What if I don’t believe the Will was valid?

You can challenge a Will if you believe that the will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe that undue influence was brought to bear upon the deceased or if there was fraud involved.

How do I make a claim?

First, contact a lawyer, who can assess your claim and discuss the particular circumstances of your claim. If it’s worth continuing we will contact the executors and notify them of your claim. We will then gather evidence, prepare documents and make an offer to the executors. Many claims are settled through negotiation at this stage.

If the matter isn’t resolved then we can lodge documents with the court to initiate proceedings. We can still negotiate and in some cases mediation will be required by the court.

Failing all else, we will proceed to a court hearing wherein the evidence will be presented and the judge will make a decision.

We can help

At every stage of contesting or challenging a Will it’s important to have sound, experienced legal advice. We have the skills to negotiate on your behalf to avoid costly court fees, but if it comes down to court we also have the skills to fight on your behalf.

RETAIL & COMMERCIAL LEASES FAQs

RETAIL & COMMECIAL LEASES

What is a Commercial Lease?

A business property lease or commercial lease is a legally binding contract between a business owner and the owner of the real estate property.

These documents are a good deal more complicated than residential leases, because the lease is usually heavily customised to the individual situation. The lease terms and conditions need to be very carefully read to make sure that they match the needs of your business, as any mistakes at the beginning could make or break your new business.

Can I negotiate the terms?

Yes, lease terms are often negotiable. The specific terms or restrictions which may be up for negotiation include the rent amount, rent increases, the duration of the lease, the modifications you can make to the property and whether you can transfer or assign the lease.

What else should I look for?

This is hard to answer without knowing your specific situation and your business requirements. Some of the common things we find we need to discuss with clients include:

If you’re a new business, check that the length of the lease suits you, as many landlords prefer to lock in a longer lease.
There are several ways to calculate rental increases so make sure you understand and agree to the one chosen by your lessor.
Read the section on property improvements very carefully as it should set out who can make changes, who pays for the modifications and whether you have to return the property to it’s original condition at the end of the lease.
Make sure the lease includes all of the areas you expect to use including bathrooms, parking areas and common areas.
Be careful that the lease doesn’t stop you from erecting signs in certain areas.

Please seek legal advice before you make any commitments, including signing an offer, paying a deposit or moving anything you own into the property.

What if I am in a dispute with my landlord?

First, find your lease documents and read them carefully, making sure that you completely understand the legal terms and conditions.

Secondly, make sure you understand your legal rights and responsibilities and those of your landlord.

Then consider the options, which include negotiation, mediation, and court action.