We are constantly building our database of frequently asked questions. We are also happy to provide you with any information that you may not find below. If you cannot find an answer to your question on this page, please complete the form below. We appreciate your questions which will help us to continue to improve our website and service to clients.
Commercial Litigation & Dispute Resolution
Business Succession Planning
Business Risk Assessment & Asset Protection
Business Transactions & Structures
Company Law, Mergers & Acquisitions
Building & Construction Law
Franchising
Intellectual Property Law
Insolvency and Corporate Restrucure
Debt Recovery
Employment Law
Estate Planning
Deceased Estates
General
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Can I make an after-hours appointment?
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Do you offer a free consultation?
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Is there parking available at your office?
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What if I have legal needs but cannot afford to pay right now?
Business Services
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Can I recover legal costs for Debt Recovery proceedings?
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What are party/party and indemnity costs?
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What is Business Risk Assessment?
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What is a Shareholders' Agreement and why might I need one?
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Do I need a written contract for my subcontractors?
Personal Services
Estate Planning
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What is Estate Planning?
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Why is Estate Planning important?
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Why should I seek comprehensive Estate Planning Advice?
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Who could contest my Will?
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Does a Will ever go out of date?
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Why should I not use a Will Kit?
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What might happen if I do not have a proper Estate Plan?
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Do all lawyers offer an extensive Estate Planning Service?
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What is the difference between a Power of Attorney and an Appointment of Enduring Guardian?
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Have all lawyers studied Estate Planning?
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When should I review my Estate Plan?
Deceased Estates
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What is a Grant of Probate?
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When is Probate required?
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What if there is no Will?
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Do I need to use a Solicitor?
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What if the Will is not held by my Solicitor?
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How should Funeral Expenses be paid?
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How do we charge?
1. Can I make an after-hours appointment?
Yes. We understand that our clients have busy schedules and/or full time employment and cannot always get in to see us during normal business hours. Our Solicitors try to be as flexible as possible and can usually make appointments before or after normal business hours and in some cases on Saturday mornings.
2. Do you offer a free consultation?
We are happy to discuss peoples' legal needs and answer questions over the phone initially fee of charge and encourage clients and prospective clients to call us when they need assistance. We strive to provide quality, value and efficient legal services and will disclose our charge rate and preliminary costs estimate prior to your initial consultation, however, we do not typically offer a free initial consultation. We do, however, offer a free initial consultations for Executors of deceased estates and people who are enquiring about contesting a Will.
3. Is there parking available at your office?
Yes. Free client parking is available in our private car park. The entry to the car park is via Victoria Street.
4. What if I have legal needs but cannot afford to pay right now?
We understand that people cannot always anticipate when their legal needs will arise and/or that business clients often have other financial commitments. We offer flexible payment plans where necessary.
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Business Services
1. Can I recover legal costs for Debt Recovery proceedings?
If you have a Contract that entitles you to recover debt collection costs then you are entitled to recover legal costs in connection with the recovery of a debt whether or not Court proceedings are necessary. Where Court proceedings are necessary prescribed legal costs, Court filing fees and service fees can be claimed in addition to the debt in a Statement of Claim.
Where a Judgment is obtained by default additional prescribed costs are added to the debt. Similar prescribed costs are added to the debt for most enforcement action.
If debt recovery proceedings are defended the legal costs that are recoverable are at the discretion of the Court.
2. What are party/party and indemnity costs?
Generally a successful party to Court proceedings is entitled to recover legal costs assessed on a party/party basis from the other party. If the succesful party has made a previous Offer of Compromise that was not accepted and subsequently obtains a Judgment that is more favourable than the refused offer the Court may order the unsuccessful party to pay legal costs assessed on an indemnity basis. As a rule of thumb, party/party legal costs are on average equal to approximatley 65-70% of the actual legal costs and indemnity costs are equal to approximately 95-100% of the legal costs.
3. What is Business Risk Assessment?
Business Risk Assessment is the evaluation and identification of risks facing the business. The purpose of a Business Risk Assessment is to identify risks, ans, where possible, implement measures to minimise or avoid those risks so that the business owner's equity in the business is protected as far as possible for their future benefit and the benefit of their families and loved ones.
4. What is a Shareholders' Agreement and why might I need one?
A Shareholders Agreement (like a Partnership Agreement) is an Agreement between two (2) or more co-owners of a business setting out their agreements with respect to the management of the business and roles and repsonsibilities of each of the co-owners. Shareholder Agreements also dictate the rights and obligations of co-owners in the event of a dispute or propsed sale of their interest in the business.
Anyone who is a co-owner in a business should have a Shareholders' Agreement (if the business is carried on by a company) or a Partnership Agreement. These Agreements minimise the likelihood of a dispute by ensuring that the co-owners have considered the objects of the business and their individual roles, rights and responsibilities. Disputes between co-owners whohave not signed a Shareholders' Agreement are common as there has generally not been any prior consideration and understanding of the co-owners' propspective commitments to the business or restrictions on dealing with their interests in the business. Generally, in the absence of a Shareholders' Agreement there is nothing stopping a co-owner from transferring their shares in a company to a third party irrespective of whether the other co-owner(s) approve of the incoming co-owner.
Shareholders' Agreements are also a key aspect of Business Succession Planning for co-owners of businesses.
5. Do I need a written contract for my sub-contractors?
Generally no, however, Contracts that are in writing give greater certainty to the terms of the Contract and, therefore, minimise the likelihood and consequences of a dispute. Further, written Contracts tend to create additional rights such as; the right to recover debt collection costs, the right to limit liability and the right to recover payment from thir party guarantors.
Standard Contract Terms & Conditions are easy to implement and can minimise the impact of bad debtors and consequences of a dispute.
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Personal Services
Estate Planning
Estate Planning is not just about making a Will, Power of Attorney and Appointment of Enduring Guardian. Estate Planning is planning for the preservation of your wealth during your lifetime as well as planning for the succession of that wealth to your intended beneficiaries in the most advantageous manner upon your death.
Without proper Estate Planning your assets may be unnecessarily at risk during your lifetime and/or your intentions for the passing of wealth upon you death may not be fulfilled. Even when it appears that a person’s circumstances are straight forward, their intended beneficiaries’ circumstances may be more complex and if not properly considered or anticipated the intended benefit of a future inheritance may be frustrated.
3. Why should I seek comprehensive Estate Planning Advice?
We should all have an Estate Plan and at certain times in our life we need to revisit our Estate Plans. However, Estate Planning is particularly relevant where you have:
• significant assets (such as an unencumbered house, an investment property or cash/savings),
• significant current or prospective liabilities (either personally or guaranteed),
• a business (especially if the business is co-owned),
• infant or disabled children,
• one (1) or more former spouses,
• children to one (1) or more partners,
• loans/advances to adult children,
• no personal insurances,
• significant Superannuation or a Self Managed Super Fund (‘SMSF’), or
• an expectation of a significant future inheritance.
The following are ‘eligible persons’ who may apply to the Court for a family provision order in respect of the Estate of a deceased person:
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a person who was the wife or husband of the deceased person at the time of the deceased person’s death,
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a former wife or husband of the deceased person,
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a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
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a child of the deceased person,
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a person:
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who was, at any particular time, wholly or partly dependent on the deceased person, and
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who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
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a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death
A Will does not expire therefore it is important to have it reviewed and updated as and when your situation changes. However, parts of a Will may become void when you get married or divorced.
The chances of a will kit delivering an undesired result are unacceptably high. To reduce those chances and adequately protect your assets you should invest in a solicitor with an in depth understanding of modern asset protection and estate planning strategies. The end result will be far more suited to your wishes and will be tailored to suit your specific circumstances.
Without proper Estate Planning your assets may be unnecessarily at risk during your lifetime and/or your intentions for the passing of wealth upon you death may not be fulfilled. Even when it appears that a person’s circumstances are straight forward, their intended beneficiaries’ circumstances may be more complex and if not properly considered or anticipated the intended benefit of a future inheritance may be frustrated.
No, not all lawyers offer a comprehensive Estate Planning service. Most lawyers offer standard wills without assessing your general Estate Planning needs at all. What good is a will if all your assets are lost during your lifetime?
A Power of Attorney is a document pursuant to which you appoint a person(s) to manage your financial affairs and property, usually in circumstances where you are unable to manage your affairs yourself (for example, due to illness, unsoundness of mind or time overseas).
An Appointment of Enduring Guardian is a document pursuant to which you appoint a person(s) to make health and lifestyle decisions on your behalf when/if you are no longer able to make those decisions yourself due to illness or unsoundness of mind.
No. These days Wills and Succession courses are not compulsory at many universities. Also, as proper Estate Planning encompasses asset protection strategies relevant to the protection of your assets during your lifetime only lawyers with an in depth understanding of family, property and commercial laws are properly equipped to offer a comprehensive Estate Planning Service. In fact, complete Estate Planning required that your Estate Planning lawyer liaise with a Financial Planner and Accountant where necessary to ensure that Estate planning strategies are the best for your circumstances from every perspective.
Generally, a person’s Estate Planning needs should be reviewed every few years. However, you should review your Estate Plan on a timelier basis under the following circumstances:
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Consideration of marriage or commencing a de facto relationship.
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Breakdown of a marriage or de facto relationship.
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Starting a business or becoming a co-owner of a business.
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If you have made or are considering making loans to adult children.
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You are siblings or friends planning for retirement.
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You Accountant or Financial Planner have recommended you establish a trust.
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You plan to make investments in property, shares or business.
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If one or more of your intended beneficiaries start a serious relationship commence a business or are employed in an at risk profession.
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Deceased Estates
1. What is a Grant of Probate?
Probate is an Order made by the Supreme Court of New South Wales authorising the Executor to deal with the assets of an Estate in accordance with the Will or Rules of Intestacy (where there is no Will).
2. When is Probate required?
Probate is required if the Estate includes:
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Real Estate, and/or
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Bank Accounts, Shares or Superannuation Benefits with balances of over $15,000.00 (depending on the institution).
3. What if there is no Will?
Rules exist under the Succession Act that dictate how the Estate assets are to be distributed where there is no Will ('Rules of Intestacy'). Usually the spouse or next of kin will need to apply to the Court for the grant of Letters of Administration to authorise them to administer the Estate.
4. Do I need to use a Solicitor?
Legal consequences and personal financial liability arise for the Executor if the Estate is not carefully administered according to the law.
Even if you do not consider that Probate will be required you should consult a Solicitor to ensure that the Estate will be properly administered.
5. What if the Will is not held by my Solicitor?
You do not need to go to the Solicitor who currently holds the Will for assistance in relation to administering the deceased person's estate. We can uplift the Will from the Solicitor holding it at no extra charge.
6. How should Funeral Expenses be paid?
If the deceased person holds money in a bank account the bank will typically release funds in the form of a cheque in favour of the Funeral Home in payment of funeral expenses on receipt of a tax invoice and Death Certificate without the need for Probate. This can occur within days of the Funeral service.
7. How do we charge?
In relation to Estate matters, we offer a free initial consultation.
We charge a fixed fee in relation to the obtaining of a Grant of Probate in accordance with the Legal Profession Act 2004.
We charge a fee for service for advice and assistance with the administration of an Estate.
Our fees are payable from the Estate upon distribution of the Estate assets.
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Frequently Asked Questions
If you cannot find an answer to your question on this page, please complete the form below. We appreciate your questions which will help us to continue to improve our website and service to clients.
