Your Essential Guide to Writing a Will

Nick McCabe — Wed, 21 Feb 2024 03:48:07 +0000

Secure Your Legacy for Peace of Mind

Writing a will is a crucial step in ensuring your legacy is handled according to your wishes in Australia. It’s not just about distributing assets; it’s about making a clear plan that protects your loved ones and avoids any potential disputes.

This article aims to simplify the process, breaking down the legalities and practical steps involved in creating a will.

Whether you’re approaching this task for the first time or looking to update your current documents, we’ll guide you through everything you need to know to make this vital task as straightforward as possible.

This article covers the following points:

Over 50 years experience in wills, estate planning and succession

We provide practical legal advice from people who care. Contact us today for a no obligation initial 15 minute consultation with one of our wills and estate legal experts.

1) Consider Your Assets

Identify all your assets, including property, investments, and personal belongings.

Considering your assets is the foundational step in preparing a will, requiring a thorough inventory of what you own.

This includes listing tangible items like real estate, vehicles, and personal belongings, as well as listing intangible assets such as investments, bank accounts, and life insurance policies.

Taking stock of your assets not only ensures a comprehensive distribution plan but also helps in identifying specific bequests you may wish to make. You should specify which asset goes to which beneficiary.

This process can highlight the value of your estate, guiding decisions about guardianship for minors, philanthropic legacies, and minimising potential estate taxes, thereby providing a clearer roadmap for executing your final wishes.

2) Decide on Beneficiaries

Determine who will inherit your assets. This can include family, friends, and charities.

Deciding who will inherit your assets is a critical aspect of preparing a will, as it determines how your estate will be divided among beneficiaries after your passing.

This decision can encompass family members, close friends, and even charitable organisations you wish to support.

It’s crucial to consider the needs and circumstances of potential beneficiaries, as well as any specific wishes you have regarding the distribution of your assets.

This process involves careful reflection and, often, discussions with those close to you to ensure that your legacy is passed on in alignment with your values and intentions.

3) Choose an Executor

Appoint a trusted person to carry out the instructions in your will.

Choosing an executor for your will is an important decision, as this person will be responsible for managing your estate and ensuring your wishes are carried out as outlined in your will.

It involves selecting someone you trust deeply, such as a family member, a close friend, or a professional like a wills and estate lawyer, who has the capability to handle legal, financial, and administrative tasks.

This choice should be made with consideration of the person’s willingness, ability to act impartially, and manage potentially complex estate affairs. It’s also wise to discuss your decision with them to ensure they are willing and prepared to take on this responsibility.

4) Legal Requirements

In Australia, meeting the legal requirements for a will is paramount to ensure its validity.

Legal requirements include:

That you are over 18 years of age and of sound mind, indicating the capacity to understand the implications of the will being created.
The document must be written, clearly expressing the testator’s wishes regarding the distribution of their assets.
Additionally, it requires the signatures of two witnesses, who are not beneficiaries of the will, to attest to the testator’s soundness of mind and voluntary nature of the will’s provisions.

These legal stipulations safeguard the will’s integrity, ensuring it reflects the testator’s genuine intentions without undue influence or coercion.

5) Seek Legal Advice

It’s wise to consult with a legal professional to navigate complex issues and ensure your will is valid and fulfils your wishes.

6) Keep It Safe

Store your will in a safe place and inform your executor of its location.

Storing a will securely is vital to ensure it is found and followed upon your passing. It’s recommended to keep the original document in a safe place, such as a fireproof safe at home, with a solicitor, or a bank’s safety deposit box.

Inform your executor, and possibly a trusted family member, of the will’s location without necessarily disclosing its contents.

Some choose to register their will with a wills registry in their jurisdiction, providing an added layer of security and ease in locating the document when needed.

Key Takeaways

This is a simplified guide. It’s crucial to consult with a wills and estate legal professional for detailed advice and to ensure your will accurately reflects your wishes and complies with Australian laws.

Preparing a Will: Secure Your Legacy with Randle & Taylor Barristers and Solicitors

At Ross & Lambert Partners LLP, we understand the importance of preparing a will to secure your legacy and ensure your final wishes are honoured. With over 50 years of experience in wills, estate planning, and succession law, our dedicated team based in Adelaide offers personalised and compassionate service to guide you through the process of preparing your will.

Why Choose Randle & Taylor for Your Will Preparation?

Expertise and experience. Benefit from our extensive experience in all aspects of wills and estate planning.
Personalised service. We listen to your unique situation to provide tailored advice and services.
Fixed fee options. We offer fixed fees for various will and estate planning services, providing clarity and transparency in pricing.

Our will preparation services include:

Drafting legally binding Wills
Testamentary Trusts
Family Trusts
Powers of Attorney and Advance Care Directives
Guidance on complex family situations
Estate Litigation and Dispute Resolution.

Securing Your Future Has Never Been Easier

Preparing a will is a critical step in managing your estate and protecting your loved ones. Our team at ROSS & Lambert is committed to making this process as straightforward and stress-free as possible, providing you with peace of mind that your estate will be handled according to your wishes.

Write a Will FAQs

Can I write my own will in Australia?

Yes, in Australia, you can legally write your own will. However, it’s important to ensure it complies with legal requirements, such as being over 18, of sound mind, and the will being in writing and signed by two witnesses.

Given the complexity and the importance of ensuring your assets are distributed according to your wishes, seeking legal advice is often recommended to avoid potential disputes or issues with the will’s validity.

We provide practical legal advice from people who care. Contact us today for a no obligation initial 15 minute consultation with one of our wills and estate legal experts.

How much does it cost to write a will in Australia?

In Australia, the cost of writing a will varies depending on the method chosen.

Solicitor-prepared wills can range from around $600 for a simple will to $3,000 for more complex ones. Public Trustees might offer will-writing services for free under certain conditions, such as for pensioners or those over 60.

Alternatively, DIY will kits are available for about $30, though it’s recommended to have these checked by a professional to ensure they’re correctly completed.

Is a handwritten will legal in Australia?

Yes, handwritten wills, also known as holographic wills (legal terminology), are legal in Australia, provided they comply with the legislative requirements of the relevant state or territory’s Wills Act.

These requirements typically include the will being written entirely by the testator (the person to whom the will belongs), and it should clearly outline the distribution of the testator’s assets upon their death.

However, while creating a handwritten will is possible, it does carry inherent risks such as potential disputes, ambiguities during probate, and the possibility of the will being challenged due to perceived illegitimacy or inadequacies in covering complex estate situations.

Are online wills legal in Australia?

Online wills are indeed legal in Australia, provided they meet the same legal requirements as traditional wills.

These requirements include being properly signed and witnessed according to the laws of the specific state or territory.

A digital will, when executed correctly (printed out, signed by the testator, and witnessed by two independent witnesses), is considered just as valid and legally binding as any will created through traditional means.

The process for creating an online will typically involves answering questions and providing details through an online platform, which then generates a document that can be downloaded and executed.

Do I need a solicitor to make a will in Australia?

You do not need a solicitor to make a will in Australia, but it’s often recommended, especially if your estate is complex.

Online wills and DIY will kits are legal as long as they meet specific requirements, such as being signed and witnessed correctly.

However, solicitors can provide valuable legal advice, ensure your will is valid and reflects your wishes accurately, and navigate more complex arrangements like trusts or large estates.

While not mandatory, consulting with professionals, such as the wills and estate lawyers at Randle and Taylor can offer peace of mind and ensure your will stands up to legal scrutiny.

Do wills in Australia need to be registered?

In Australia, wills do not need to be registered or lodged with any authority. It’s recommended to keep your will in a safe place and inform your executor(s) and family members about its location for ease of access when necessary.

What makes a will VALID in Australia?

For a will to be valid in Australia, it must be made by someone over 18 with mental capacity, intending to set out their wishes upon death. It needs to be in writing, signed by the will-maker in the presence of two witnesses, who must also sign the document. The will-maker should have knowledge and approval of the will’s contents, ensuring it reflects their final wishes without undue influence or coercion.

What makes a will INVALID in Australia?

A will in Australia may be deemed invalid for several reasons, including if it wasn’t the last will made by the deceased, if the deceased lacked the mental capacity to make a will, if the deceased did not understand the will, if undue influence was exerted on the testator, if the will’s signature was forged, or if the will had been revoked.

What happens if you don't leave a will in Australia?

If you die without a will in Australia, known as dying intestate, your estate will be distributed according to a set formula defined by law, and your affairs may be managed under a Supreme Court order through Letters of Administration.

This process can be time-consuming and costly, both financially and emotionally, for your loved ones. The distribution of your assets will depend on your family structure and may not reflect your wishes.

We provide practical legal advice from people who care. Contact us today for a no obligation initial 15 minute consultation with one of our wills and estate legal experts.

Who can witness a Will in Australia?

In Australia, witnesses to a will must be mentally competent, able to see the will-maker sign, and not be blind or vision impaired. Beneficiaries of the will, including their spouses or partners, should not act as witnesses. The legal requirements include the presence of at least two witnesses during the signing.

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Parenting Plan vs Parenting Order

Nick McCabe — Mon, 11 Dec 2023 03:24:05 +0000

Your guide to parenting arrangements in separation

Navigating the intricate landscape of parenting arrangements during a separation can be a formidable task, particularly when you and your former partner simply can’t agree on anything.

In this comprehensive guide, I will dive into the multifaceted aspects of parenting plans and parenting orders, exploring the nuances and considerations as well as discussing how a good family lawyer can help..

I hope this article will help you tackle this challenging time with greater clarity and purpose.

What is a parenting plan?

A parenting plan serves as an informal, written parenting agreement that delineates post-separation arrangements for children. However, are parenting plans legally binding? No, while they require the signatures of both parents, they remain an informal documentation of agreed-upon parenting roles and responsibilities.

The informality of a parenting plan is both its strength and limitation. On one hand, it provides a flexible framework that can be tailored to the unique and ever-changing needs of the family. On the other hand, its lack of legal enforceability may pose challenges if conflicts arise.

Components of a parenting plan

A well-crafted parenting plan typically covers various aspects of the arrangement in detail.

Residence of the children

Clearly defining where the child or children will live is a fundamental aspect of a parenting plan. This includes specifying the living arrangements during weekdays, weekends, holidays and special occasions.

Time and communication with each parent

Allocating specific times for the children to spend with each parent is a crucial element, especially if they will primarily live with one parent. It’s also important to outline how communication will be facilitated, especially in this digital age.

Dispute resolution processes

Anticipating and addressing potential conflicts is a prudent step in a parenting plan. Clearly outlining the processes for resolving disputes can help prevent escalation and maintain a healthy co-parenting relationship.

Rights and obligations of parents

Defining the rights and obligations of each parent concerning the child/ren helps establish a framework for shared responsibilities. This may include decisions related to education, healthcare and religious observance, but can also include smaller decisions such as extracurricular activities.

Formalising parenting arrangements

Despite its informal nature, a parenting plan provides a valuable starting point for co-parenting post-separation.

However, should the need for formalisation arise, initiating a court application and obtaining parenting orders become imperative. This transition from an informal agreement to a legally enforceable arrangement involves a series of steps, often necessitating legal guidance.

What is a parenting order?

In contrast to a parenting plan, a parenting order is a formal decree issued by the court, determining the parenting arrangements deemed to be in the best interests of the child or children.

When parties are unable to reach an agreement on their own, an application to the court becomes necessary. The court may issue interim orders initially, with final orders following a formal hearing.

An experienced family lawyer can help you with how to apply for a parenting order.

Key characteristics of parenting orders

Parenting orders are issued by the Federal Circuit and Family Court of Australia, underscoring their legal authority and binding nature.

Parenting orders are usually detailed and comprehensive, leaving little room for ambiguity. Despite this, they also possess a degree of flexibility, accommodating changes in circumstances, especially in situations involving young children.

Once issued, parenting orders typically remain in effect until the child reaches the age of 18. Changing or setting aside these orders is a challenging process, requiring a significant change in circumstances.

Perhaps the most significant distinction is the enforceability of parenting orders. If a parent fails to comply, court intervention can enforce compliance, potentially leading to consequences for the non-compliant parent.

Parenting plan vs. parenting order

Understanding the nuanced differences between parenting plans and parenting orders is crucial for making informed decisions based on individual circumstances.

The key thing to understand here is that parenting orders are a legal framework. Parenting orders are formal decrees issued by the court, carrying the weight of legal authority.

They can be highly detailed, covering a wide range of parenting aspects, leaving little room for ambiguity or disputes between parents.

Despite their detailed nature, parenting orders can also be flexible, especially when accommodating the evolving needs of young children.

How long does a parenting order last? These orders endure until the child reaches the age of 18, providing stability and a default position in the absence of parental agreement.

The most significant advantage of parenting orders is their legal enforceability. If contravened, court intervention can be sought, potentially resulting in consequences for the non-compliant parent.

Parenting plans are a more informal understanding, simply written and signed agreements between parents. While they offer flexibility, they lack the legal force of a court order.

They are effective in situations where parents can communicate effectively and collaboratively. The emphasis is on mutual understanding and cooperation.

As informal agreements, parenting plans lack legal enforceability. If one parent fails to comply, seeking legal recourse involves initiating court proceedings and obtaining parenting orders.

The absence of legal consequences for non-compliance may pose challenges, and if conflicts arise, the transition to a legally enforceable arrangement may become necessary.

When are parenting plans effective?

The effectiveness of a parenting plan hinges on various factors, and each family’s unique circumstances play a pivotal role in determining its suitability.

Parenting plans work well in situations where parents can communicate effectively and collaborate to make decisions in the best interests of the child/ren.

The flexibility of parenting plans allows for adjustments based on the evolving needs of the family, making them suitable for cooperative co-parenting, and the emphasis on dispute resolution processes fosters a proactive approach to conflict resolution within the family unit.

However, they are less effective in high-conflict situations or where there is a significant power imbalance. In this context, effective communication may be challenging, rendering parenting plans less suitable.

The lack of legal enforceability can be a disadvantage in situations where one parent is not complying with the agreed-upon plan. Seeking legal recourse involves a transition to parenting orders.

There are additional considerations for families with international dynamics, where there are concerns about obtaining passports or potential issues with international travel. Parenting plans may not sufficiently mitigate the risks associated with international travel, including the potential for child abduction.

Parenting Plan vs Parenting Order

Navigating parenting arrangements during separation involves a nuanced understanding of the distinctions between parenting plans and parenting orders.

While parenting plans offer flexibility and a collaborative approach, parenting orders provide a legally enforceable framework, especially crucial in high-conflict scenarios.

Understanding the unique dynamics of your family is essential in determining the most appropriate approach. Seeking expert legal advice can help you make this decision and create the appropriate documents.

Remember, the priority is to act in the best interests of the children and foster a stable and nurturing environment despite the challenges of separation.

Do You Need Family Law Help?

Ross & Lambert Partners LLP was established in 1970. Our fees are competitive with other firms in South Australia.

Please contact Ross & Lambert Partners LLP for assistance with your parenting agreement today.

Let us know what you would like from your legal firm and we will endeavour to tailor our advice and services to your specific requirements.

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Commercial Leases Adelaide

Nick McCabe — Tue, 07 Feb 2023 06:19:54 +0000

Everything You Need To Know About Commercial Lease Agreements in SA

When renting commercial property, it is vital for both parties (landlords and tenants) to understand the agreement that they are entering into and the rights and obligations that they have.

These rights and responsibilities are defined in a commercial lease agreement – a legally binding document which outlines the terms between both parties.

In this article, we cover common commercial lease pitfalls, how a Commercial Lawyer can help you, and some frequently asked questions.

Need Commercial Lease Assistance?

Established in 1970, we’ve helped thousands with their commercial and corporate legal needs. Contact us today for a no-obligation initial 15-minute consultation.

Pitfall #1: Not being aware of how an option to renew can be exercised

If the Lease contains a right of renewal both parties need to be aware of how and when this option can be exercised and note these dates in their calendars as a prompt for when they should begin the renewal process.

It is imperative that tenants, in particular, are aware of what the lease provides in relation to when and how the option can be exercised.

If the option is not exercised in accordance with the Lease the landlord may not be obliged to renew the agreement.

Pitfall #2: Not properly reviewing the repairs and maintenance conditions

The repairs and maintenance clause are the source of many disputes between the landlord and tenant.

Both parties should properly review the clause within the commercial lease agreement and ensure that it clearly sets out who is responsible for certain maintenance or repair obligations.

For example landlords are often not required to maintain the structure of the Leased premises. However tenants are required to repair and maintain its condition.

As a tip, it is also advised that both the landlord and tenant jointly inspect the premises and take note and photograph or video any pre-existing damage before the lease commences as most disputes regarding damage to the premises arise even before the lease has begun.

Pitfall #3: Not properly reviewing the rent clause in the lease

The initial rent is negotiated between the tenant and the landlord. Obviously you should do your own research as to what is a fair market rent for the premises you are leasing.

With the rent review, however, most leases are reviewed on the anniversary of the commencement date and will stipulate the method that can be used for rent review.

Some of these methods include:

Market review
A set percentage increase
Consumer Price Index (CPI)
Any other agreed method.

The types of review can vary over the life of the lease but should be detailed and agreed on within the agreement.

How a Commercial or Lease Lawyer Can Help You

With a commercial lease it is imperative that you never sign the commercial lease agreement without understanding all of its terms and conditions. If you end up doing so, you may face serious legal and financial problems in the future.

There are various laws for example the Retail and Commercial Leases Act 1995 (formerly Retail Shop Leases Act 1995) and the Landlord and Tenant Act that apply to commercial leases.

Therefore there are numerous factors to take into consideration with a commercial lease agreement, it is worth asking a Commercial Lawyer to assist you with reviewing, drafting or negotiating the terms of a commercial lease.

In addition, commercial or lease lawyers will also provide you with practical advice that can protect your interests while achieving your goals and objectives.

Frequently Asked Questions

Is there some information that I can refer to pertaining to commercial leasing in South Australia?

Yes, you can refer to the Retail and Commercial Leasing Guide. This guide has the amendments passed by the South Australian Parliament in December 2019. It contains information about your rights and obligations and governs most commercial leases in South Australia where rent does not exceed $400,000.

Please be aware that special laws apply if you are going to lease a premises in a shopping centre.

Is there a minimum lease term?

Yes, there is a minimum lease term of 5 years, including any options to renew. There are, however, some exceptions to this requirement such as if the lease contains a Certified Exclusionary Clause or is a short- fixed term lease.

What is the lease documentation required in South Australia?

The landlord should be providing the tenant with the following documentation:

A draft of the lease which contains all of the terms and conditions and a plan of the leased premises.
The most recent version of the Retail and Commercial Lease Guide.
A Disclosure Statement.

Do You Need Commercial Law Help?

Ross & Lambert Partners LLP was established in 1970. Our fees are competitive with other firms in South Australia.

Let us know what you would like from your legal firm and we will endeavour to tailor our advice and services to your specific requirements.

Please contact Ross & Lambert Partners LLP for assistance with your commercial law issues today.

(08) 8223 6477

The post Commercial Leases Adelaide appeared first on Ross & Lambert Partners LLP.

Common Commercial Law Issues

Nick McCabe — Sat, 18 Dec 2021 04:08:06 +0000

Common Commercial Law Issues and How a Commercial Lawyer Can Help

A commercial lawyer specialises in all types of commercial, company and business disputes including debt collection, property and construction, partnership, contractual and franchising disputes.

Some of the more common commercial law issues we see include a range of different commercial disputes, litigation, reviewing and drafting commercial legal documents, issues around commercial property leases, sale and purchase of businesses, shareholders agreements and more.

In this article we cover our top three commercial law issues and describe how a commercial lawyer can assist you.

1 – Commercial Disputes

Commercial disputes are commonplace and can occur in a number of different areas, including contracts, negligence, misleading and deceptive conduct in breach of the Australian Competition Consumer Law, unfair dismissal claims. The most common commercial disputes are:

Breach of contract
Negligence
Breach of the Competition and Consumer Act 2010
Insurance claims
Defamation

If you feel that your legal entitlements are being ignored by others, a commercial law firm like Ross & Lambert Partners LLP will offer you strong legal representation to fight for your legal rights and protect your interests and objectives.

2 – Commercial Legal Documents

Put simply, we explain complicated legal documents to you, without the jargon.

Commercial lawyers can help you with a range of commercial legal documents. The advantage of using tailor made legal documents, compared to generic online templates, is that if the matter ever goes to Court, you will have better legal protection. You can use a range of legal documents for protecting your interests, including:

Confidentiality Agreements
Commercial Lease Agreements
Non-Disclosure Agreements
Terms and Conditions
Disclaimers
Supplier Agreements
Shareholder, Partnership and Joint Venture Agreements
Letter of Demand
Statement of Claim

Having these documents spelled out in black and white makes it easier to know each party’s rights and responsibilities. It is also good risk management to have your legal documents drafted by legal professionals who work to enforce your rights.

3 – Common Issues with Commercial Property Lease Agreements

In South Australia, retail shop leases are governed by the Retail and Commercial Leases Act 1995.

It is important to know what is written in your commercial lease before you sign on the dotted line. As a commercial lease is a legally binding document, it is recommended to obtain legal advice first, from a commercial lawyer. This will help to define the rights and responsibilities of each party.

Common issues that affect the tenant include:

Lease term – how long is your lease term? Longer leases, such as five or ten years, are better suited to more established businesses. Shorter lease terms for newer businesses are lower risk options.
Renewal clause – be sure to check there is an option to renew your lease. Otherwise, once the lease expires, there is no certainty that you’ll be allowed to continue operating your business on the premises.
Fit-out contribution – this is the amount the landlord may contribute to the fit-out of your newly leased premises
Rent – ensure you know how to pay rent, on what date, by what method, and if the amount is GST inclusive or exclusive
Disclosure Statement pursuant to the Retail and Commercial Leases Act 1995
Outgoings – who pays these? It is important to clarify who pays certain outgoings, such as council rates, water, building insurance, strata fees and more. Outgoings can be specified in a clause as part of your right of review.
Permitted Use – it is important to ensure that the permitted use clause allows you to run your business as it needs to be run, without any unreasonable constraints.
Permitted use and suitability of the premises.

Common issues that affect the landlord include:

Security bond – it is important to protect yourself by seeking a security bond from the tenant in the case of a tenant default. A security bond may be requested in the form of a bank guarantee or a personal guarantee.
Outgoings – It is common for a tenant to pay the outgoings, (both their own, such as electricity, gas and phone) and the landlord’s outgoings (including rates, taxes and levies).
Payment of legal fees – during the preparation and negotiation of the lease, it is common for the tenant to pay the landlord’s legal fees.
Disputes – ensuring a dispute resolution process is included in the lease agreement is important in the event the tenant does not comply with the terms of the commercial lease.
Guarantees

In terms of what should be included in a commercial lease, the commercial lease must always be tailored to specifically suit either the Landlord or the Tenant and the specific nature of the premises that is leased.

A commercial lease will look different, depending on whether we are acting for a Landlord or a Tenant.

Other common issues around commercial property include sales and acquisitions, and land development.

Do You Need Commercial Law Help?

Ross & Lambert Partners LLP was established in 1970. Our fees are competitive with other firms in South Australia.

Let us know what you would like from your legal firm and we will endeavour to tailor our advice and services to your specific requirements.

Please contact Ross & Lambert Partners LLP for assistance with your commercial law issues today.

(08) 8223 6477

The post Common Commercial Law Issues appeared first on Ross & Lambert Partners LLP.