Archive for the ‘Newsletters’ Category

Being an executor of a deceased estate

After a person dies someone has to look after the assets of that person and pay the person’s debt. Although the person is no longer here, his or her affairs must be finalised and the person to finalise the affairs is appointed by the Will of the deceased.

Where a person is appointed by a Will, that person is called “an executor”.

An executor is chosen by the person making the will to carry out their wishes in managing their estate, and is responsible for the administration and distribution of assets to beneficiaries according to those wishes. An executor may be a friend, a relative, or a professional.

Most people are unaware of the complexities and time involved in administering an estate and may find the role to be a burden.

 

What are the legal steps that are taken after someone dies?

The executor of a Will may need to make an application to the Supreme Court for Probate. This is usually done with the help of a lawyer. Probate is a Court order declaring a deceased’s Will valid and that the person named in the Will as the executor can finalise the deceased’s affairs.It is not always necessary to get a Grant of Probate. The need for a Grant by the Courts has been relaxed over the years, although an application for a Grant is still necessary in many cases.

 When do I need to apply for Probate?

The requirement to apply for a Grant of Probate will depend upon the nature of the assets of the estate. To determine whether a Grant is needed, the person appointed executor in the will must contact the organisations with which the deceased held assets to determine the requirements of those organisations for transfer of those assets to the executor or the beneficiaries. This is best done through your lawyer.

Where a dispute does or is likely to arise over the estate, a person appointed as executor would be wise to apply for a Grant of Probate. Where a person does not have the right to deal with an estate, the person can become personally liable to the beneficiaries.

How to apply for Probate

 Anyone appointed an executor under a Will must firstly determine the deceased’s assets and debts. Once that is known the executor can then determine how the assets can be transferred to the beneficiaries.

In making an application to the Supreme Court, the executor must:

  • advertise the application
  • lodge a formal application with the Court with an affidavit (a sworn statement) containing:
    • proof of the advertisement
    • details about the Will
    • certain details about the deceased person; and
    • the original Will
  • do a search of the Registry records to indicate a previous Grant has not been made; and
  • provide a certified copy of the death certificate.

Paying any debts and distributing the assets

Any debts of the estate must be paid before the estate is distributed. Then the executor distributes the estate in accordance with the will.

After the Grant of Probate from the Supreme Court Registry has been made, evidence of the Grant must be sent to the various places where the deceased’s assets were held (ie. the deceased’s banks or share registries). Those institutions then transfer the assets as directed by the executor or the executor’s lawyer.

Any land in the sole name of the deceased can be transferred to the executor or the beneficiary by lodging the Grant of Probate with the Land Titles Office, together with an application to transfer the land.

Where the deceased owned land in more than one jurisdiction, it may be necessary to apply to the Supreme Court of each jurisdiction for a reseal of the Grant of Probate, before the land can be transferred under the Will.

If you need to know any more about administering an estate, check our section Wills and Estates or please call us on 07 3281 6644 or email mail@powerlegal.com.au.

 

Buying a Rural Property

 Buying a Rural Property

The process of buying a rural property or farm is a little different to buying a residential house in town.

A prudent purchaser should conduct the usual pre-contract inspections on the home and buildings on the rural land. This should include a timber pest inspection and a building inspection to discover any defects that are not usual “wear and tear”. Any issues of concern in these reports should be followed up with licensed tradesmen where required.

In addition, as with “town land” the buyer must beware and will risk financial loss if the proper investigations are not done before entering into a contract.

One of the major considerations when buying rural property is whether the purpose you are buying the property for fits the use allowed by the local council and other state government departments. It is a costly mistake to buy a property say for aquaculture in an area that does not permit that type of agricultural pursuit, or the area may have chemical residue which will destroy your organic farming intentions.

By commissioning searches and enquiries before you enter into a Contract for Sale you can minimize the risk of hidden “surprises” on your rural property.

Chemical Residues, Livestock & Plant Diseases, Noxious Weeds & Animals

If you intend growing crops on your land for sale or raising livestock for market, the presence of chemical residue in the soil can destroy your business. Organochlorines such as DDT were used extensively on farms (and all property) to control pests and the residue can remain for decades in the ground and attach to plants and animals.

Some diseases can stay on the land long after the animals are gone even for long periods of time after de-stocking. Protection zones often prohibit certain activities on farms if affected and may stop you from keeping certain types of animals or stock at all if a significant risk exists. A Local Land Services (LLS) search will disclose some information regarding this.

Specific types of crops can be affected by specific pests for example fruit fly and nematodes. If you intend cropping a thorough investigation by an experienced horticulturalist is recommended and Local Councils often have officers who can assist. You may also want to get a soil test to establish firmly that there are no chemical residue in the soil. P a g e | 2

Noxious weeds and pests can also be a problem on rural land. A search sent to the LLS (previously the Rural Lands Protection Board), can show any notifications or orders on the property for these issues.

Survey

A survey shows the dimensions and boundaries of the property and is particularly important when buying a rural property.

Existing fencing may not be accurate and can give an incorrect picture of the actual land you are buying. If a water source appears to be within the property and in fact it isn’t, a survey will show this error and you can negotiate for purchase of the property with this knowledge. If this is the only water source on the land, the result of not getting a survey might be devastating to you.

Land Use

Aspects of rural land use including development, agricultural use, irrigation and clearing are governed by the local council and state government agencies such as the EPA (Environmental Protection Authority). There are rules on what you can and cannot do on the land and these rules should be checked thoroughly before you buy a property, especially if it is for a specific purpose.

Infrastructure for your farm including building of roads and bridges should be investigated and environmental considerations for your intended use of the land checked to make sure they comply with land use rules.

Access

A right of legal access must be confirmed before you buy a rural property.

Sometimes what looks like access may just be an easement or a stock route that can be changed and leave you unable to access your land. This should be checked particularly around Crown Land areas where they may be “enclosed roads” that look like normal roads but are actually owned by the government and can be closed at any time, possibly denying you access to your property.

Easements

The current plan of the land should be carefully considered for any “proposed” or “intended” easements or rights of way. Easements not on the land at the time of inspection but noted on a plan as approved may impact on your farming in the future. P a g e | 3

Water Entitlements

Rural land without water is not as valuable. To protect your investment you should check whether the water resources are registered as required by local government and state law. Irrigation licences, water access from rivers and water bores all need the appropriate approvals and details should be included in the contract for sale. Dams should also be checked for compliance if required in the area in which you are buying.

Native Title

A search can be obtained to show whether there is a current native title claim on the property and the extent of which this may affect your farming endeavours.

Taxation issues

If you are buying rural land on which to run a business you should discuss your purchase of the land and the type of business you wish to have with a competent accountant experienced in rural taxation who can advise you on GST and CGT implications and tax issues.

Conclusion

Every rural property is different and it is important that you get the right advice and assistance before and after you enter into a contract to buy a property.

Legal professionals who are experienced in rural conveyancing can assist you in properly investigating rural land for any risks to protect your financial investment.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Why it’s a bad idea to write your own Will

Why it’s a bad idea to write your own Will

It is relatively easy to find a free Will template on the internet and fairly cheap to buy a Will “kit” from a newsagent or online. There are also websites that have “data collectors” that take your information and create a Will for you seemingly without any legal expertise required.

So, is it really a good idea to write your own Will?

 Why you need a valid Will

The sole purpose of writing a Will is that you can direct where your assets go when you pass away.

If you have a valid Will your executor applies through the probate process and distributes your estate in accordance with what you have written in your Will. If you hold joint property with your spouse probate is not usually required unless substantial assets are held in your own name.

There are many common situations however where a valid Will is required to properly distribute your estate and look after your family and loved ones.

If you have a Will that is deemed not valid by the probate court then your estate will most likely be exposed to delay in distributing your estate, increased legal and court costs and perhaps resulting in financial hardship and emotional anguish for your family.

Most people think that their situation is simple and that a DIY Will is enough but consider the following situations and whether they may apply to you or someone you know.

 Your home-made Will is lost or cannot be found

When a lawyer prepares a Will for you they usually hold the Will after signing in their safe custody and provide you with copies.

Even if you take the original Will the lawyer will keep properly certified copies of the original Will. If you subsequently lose the original Will your family can ask the court to look at the copy of the Will and allow the wishes in that Will to stand.

If there are no copies the family is put to the expensive task of applying to the probate court for a grant of administration which is a more lengthy and costly method of dealing with an estate than the usual grant of probate.

Your hand-written Will is not signed correctly

There are very strict requirements for the signing and witnessing of Wills, if your Will is not signed correctly or is not witnessed properly it may be invalid.

If your Will does not deal with all of the assets and liabilities that you leave when you die your Will may be ineffective in dealing with those assets.

Once your Will is made even writing on it later or making any changes will invalidate that Will and may render it ineffective, either partly or fully, in dealing with your assets.

You own a business

It is likely that the business will continue to run after you die. You will need a validly appointed executor to run the business until it is either sold or dissolved. You can achieve this in a valid Will.

Consider that the business may have ongoing expenses such as rent and staff costs that still have to be paid and may cause the family hardship until the business can be liquidated if there is no one validly appointed to run the business.

You and your partner are not married

When you purchased the property together it was bought in equal (or unequal) shares as you both have children from a previous relationship.

Again the property may not get transferred to either your de facto partner or your children as a matter of course. If you do not have a valid Will your property cannot be dealt with in a simple and cost-effective way.

Previously made Wills are not automatically revoked when you make a new Will

If you have a Will that you made when you were younger, perhaps leaving all of your estate to your parents, and then move residence and commence a relationship and have children.

If your new Will is invalid your estate may go to your parents not to your new family as you intended and if it does it will be a costly and longer process.

You are married but hold property solely in your name

You may have bought the property when you were single or owned the property from a previous marriage or inherited it from your parents.

If you have no valid Will and no executor to put into effect what you have written in your Will, the property cannot be transferred until the Court appoints an administrator after delay and costs have been incurred.

 If you leave your superannuation in your DIY Will

Superannuation may form part of your estate and be dealt with in accordance with the terms of your Will, but in most cases superannuation will be paid directly to a beneficiary nominated in your superannuation policy without any reference to the terms of your Will.

Whilst you can provide in your Will that your estate be given to whoever you would like there is only a small eligible group of beneficiaries who can directly receive superannuation benefits on your death.

Superannuation funds have particular rules for releasing funds to an estate and an invalid Will makes this process more difficult to navigate.

Again the release of funds is not automatic to your family and your loved ones may suffer hardship if the release of funds is delayed.

 Lawyers are trained to write valid Wills

Your lawyer will always do these two things when drafting your Will:

  • they take into account the strict law requirements for a Will to be considered valid by the state probate court; and
  • they also consider your particular situation and the specific individualised elements you need included in your Will.

Your lawyer will also consider whether you need a guardian for your children, a trustee to run your business, whether an elderly relative needs to remain in your home after you are gone and a myriad of life circumstances that are particular to you.

If you or someone you know wants more information or needs help or advice in preparing a valid Will please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

What to do after Separation

What to do after a family separation and pending divorce

Do you have a friend or relative who has just separated?  If so, the information below  should help.

What is meant by  separation?

Separation in Family Law is defined as the bringing to an end of a marriage or de facto  relationship (which also includes same sex couples). There is no need or ability to  register a separation under Australian Family Law. Separation is a fact which must be  proven if it is disputed by the other party at a later time.

In the case of a divorce, the date of separation is recorded on the Application for Divorce  and is sworn or affirmed to be true and correct by the Applicant. If you cannot prove you  had separated from your spouse at least 12 months before you file your Application for  Divorce, the Court will not grant your divorce.
Therefore, it is a good idea to confirm the separation in writing, even if this is via text
message that can be saved, at or shortly after the time of separation. Often divorce  cases and cases for property settlement in de facto relationships can turn upon whether  or not a party can prove that separation occurred on a particular date.

What about de facto relationships?

In the case of a de facto relationship, particularly where the relationship ends on or  about the two year anniversary, whether or not a property settlement is available can  depend on whether the separation took place before or after the two year anniversary. If the de facto relationship was less than two years long the Court may have no jurisdiction  under the Family Court Act to provide a property settlement. There may be alternate  remedies available or another basis other than the two year requirement to show that a de facto relationship existed.

In addition, there is also a two year limitation period in which to commence the  Application, from the time of separation. In such cases, again, the date of separation can  be significant.

What about if you still live together?

Separation can take place even though the parties live under the one roof and it can  also be a gradual process. In these cases, the Court will need to examine a number of  factors to determine when and if a separation has taken place.

Those factors can include whether the parties:

  • Slept in separate rooms or together after the alleged date of separation;
  • Performed domestic duties such as cooking and washing for each other after the alleged date of separation;
  • Separated their financial affairs to any extent after the date of separation;
  • Lodged or signed any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single
    person, as opposed to a person in a relationship;
  • Continued to be intimate after the date of alleged separation; and
  • Made it publicly known (such as by telling friends and family), that they had separated.

Ten things to consider if a person has just separated:

  1. Contact your bank or financial institution in writing (by fax or email with your signature appearing) to stop joint funds being removed or liabilities increased.
  2. If you have a Power of Attorney, ensure it is revoked, and have a new one drafted.
  3. Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
  4. Photocopy all of your and your ex’s financial documents and put them in a secure location (this should not be your home or motor vehicle).
  5. Look at your Will and consider if it is still what is appropriate and if you do not have a Will have one drafted.
  6. If you have children, contact the Child Support Agency and find out how much is to be paid or is payable.
  7. Do title searches on your properties. If your home is not in your name or is in joint names ensure you place caveats over the properties. If your property is held as a joint tenant, ensure you sever the joint tenancy.
  8. If there has been family violence in the relationship you may need to seek a Restraining Order.
  9. Start a diary which keeps track of time your partner has with the children and any adverse behaviour he/she displays.
  10. Seek advice from an experienced Family Lawyer.

If you need more information, check our section Family Law or if someone you know needs help, get them to call us to speak to one of our solicitors on a no obligation basis on
(07) 3281 6644 or email mail@powerlegal.com.au