[AMA] I am a Lawyer Practising in Wills and Estates in Queensland

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  ozjames on 21/07/2017 - 11:40

  Hi - Thanks for doing this, With the governments of the day - looking at taking property for funding care etc how can i protect that for our kids

  so what i was thinking was having something where as if i die i can leave half the property to the kids , but my wife has the right to live in the property until she passes away , and if this happens to be 10 years later and if during this time my wife was required to go into care only half the property value could be taken in to consideration in funding her care instead of the whole thing being sold and paying for the care … hope this makes sense!

  • 

    mr_vino89 on 21/07/2017 - 12:22

    +1

    Hi ozjames,

    • Quick note for consideration: Usually husband and wife leave their estate to each other first. The children will eventually receive the benefit upon the death of the last parent later down the track. E.g. Husband would leave estate to Wife solely. When wife passes away, the estate will be left to the children equally under the Wife's Will.

    • if the property is held by yourself and your wife "jointly" (instead of as tenants in common), by operation of the law the property will be transferred to her automatically upon your death, vice versa even without a Will. The Will will deal with all other property not held jointly.

    • consider the practicality of your arrangement of the Executor(s) administering your estate and carrying out your wishes under the Will.

    • You can leave half of the property to your kids and the other half to your wife with a condition that your wife has a life interest over the property. However you will need to include very specific conditions and directions of selling the property with part of the sale proceeds to fund her care and when the property is to be sold etc etc. Again, consider the practicality of this arrangement as it may be very complex to administer.

    • also consider dividing your entire estate (including all real and personal property) equally between the children and the wife. This will allow the executors to liquidate all your assets and the funds to be give to your children and wife equally. You could also then a specific clause to deal with the property separately whereby she is given a life interest over the property and where she no longer lives there, the property to be sold and the sale proceeds to be divided amongst them. That way, the money she has received can by used toward her own care at her discretion.

    • you could also provide a specific cash gift to your wife (if you have money in your account) with a condition that it be used solely for her care.

    Hope this helps.

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  tsunamisurfer on 21/07/2017 - 12:14

  If a person dies intestate, how much does the Public Trustee charge to sort out one's estate? I'm trying to explain to a friend without a will that the Public Trustee is potentially expensive.

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    mr_vino89 on 21/07/2017 - 12:32

    +1

    I not too sure to be honest. It appears that they charge on an hourly rate as opposed to an executor's commission (which was based on a percentage for the estate) http://www.pt.qld.gov.au/media/1519/2017-cost-to-administer-…

    If the person dies intestate, a family member can make an application in the Supreme Court for Letters of Administration allowing them to act as the personal representative of the estate.

    My general recommendation (without trying to be bias) is to obtain legal advice from a solicitor instead of the Public Trustee to adminster the estate. They tend to have a greater understanding of not just Estate administration but also the property law aspect of the estate.

    My advice is to also have a Will.

  • 

    altomic on 21/07/2017 - 16:54

    +1

    The Public Guardian is usually more often than not very expensive for handling estates.

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  Mistymoo on 21/07/2017 - 12:15

  If someone has died and left behind an inheritance in QLD, how long does it take generally for the estate to be finalised?

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    mr_vino89 on 21/07/2017 - 12:36

    It really depends. Need to take into consideration the size of the estate, whether that person left a Will and whether a Grant of Probate/Letters of Administration needs to be obtained from the Supreme Court, whether anyone is going challenge or contest the Will etc etc.
    Some can take anywhere between 3 - 18 months but I've dealt with large estates that can take many years…

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  [Deactivated] on 21/07/2017 - 12:23

  is it worth paying roughly $400 each, we need 2 for a professional will or is it better doing it yourself with a will kit knowing the wording won't be 100% correct and also knowing that 101% no one in our very small family will not contest the will. Also will the state still accept the will.

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    mr_vino89 on 21/07/2017 - 12:43

    My recommendation is always get your Wills prepared by a legal practictioner. YOu are not only getting your Wills prepare but more importantly you are getting the professional tailored legal advice to suit your circumstances.

    You can write up a Will on a napkin and it will still be accepted provided that it meets all the legal requirements.

    • 

      [Deactivated] on 21/07/2017 - 12:52

      Thanks, your advice is very much appreciated.

      • 

        lddv04 on 21/07/2017 - 13:10

        I've you're a member of a union, you can usually get a free will. I had one done up last year. Didn't cost a cent for the will. However, I tacked on Power of Attorney which did cost me about $400.

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  [Deactivated] on 21/07/2017 - 12:35

  +1

  Suppose I marry a wealthy senior citizen and inherit her vast estate.

  How can I stop her children from disputing the will?

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    mr_vino89 on 21/07/2017 - 12:52

    as the surviving children of the deceased, they are entitled to bring a court action to challenge the will or make a family provision claim for maintenance (usually has to be done within the first 9 from the date of death under Qld legislation). Whether or not they are successful is a different issue on its own…

    If you are genuinely "in love" with your wealthy senior citizen bird, spend heaps of time with her on expensive and lavish holidays and spend all her money "together" while she is still alive lol jks :P

    • 

      [Deactivated] on 21/07/2017 - 13:02

      If you are genuinely "in love" with your wealthy senior citizen bird, spend heaps of time with her on expensive and lavish holidays and spend all her money "together" while she is still alive lol jks :P

      Her pacemaker does have a bit of on eneloop habit…

      Whether or not they are successful is a different issue on its own…

      Apart from spending the money, is there anything I can do to reduce the chances on the children winning in court?

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  A4444 on 21/07/2017 - 12:37

  Hi Mr Vino,

  Thanks for your time. I have a question, I understand you are in QLD, hopefully law will be similar in NSW.

  If a couple resides in NSW/ QLD with a young child and they have no other family in Australia. Unfortunately, if the couple dies, who will get the custody of child?

  What could couple do, to ensure that in the event of their untimely death, couple's parents/ family living overseas will get the custody of child quickly and can take the child overseas to live with them.

  Thanks for your guidance, appreciate it.

  • 

    mr_vino89 on 21/07/2017 - 13:31

    +2

    In your Will, it is best to nominate someone to be the testamentary guardian of your children should you both pass away. A testamentary guardian will be able to make decisions about the long term care of the child such as education or religion.

    Appointing a testamentary guardian doesn’t necessarily mean that your child will live with that person. They will only have the daily care of your children if the other parent is dead and there is no other family court or federal circuit court orders in place saying who your child is to live with.

    Otherwise a person can make an application in court to be the child's legal guardian.

    • 

      A4444 on 21/07/2017 - 14:37

      Thank you, greatly appreciate it.

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  spychiatrist on 21/07/2017 - 12:44

  Hi OP, thanks for doing this. Please list down the benefits of having a will and if the Aus Post Will good enough. I was told a story that without a will, the public trustee got 30% of the estate.

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    mr_vino89 on 21/07/2017 - 13:44

    +1

    • There is a better chance of your estate being gift to the people you have nominated under you Will.

    • The law around administering an estate with a Will is vastley different to administering an estate without a Will.

    • The intentions of the testator under the Will provides more certainty and much clear, and reduces the risk of a dispute arising between the beneficiaries of their entitlements.

    • A post office Will can still be valid provided that it meets all the legal requirements. However you should always obtain legal advice before you sign a Will. Not only can they prepare your Will but also provide you tailor legal advice to suit your circumstances.

    • I am not too familiar of the public trustee's practice but I believe they now just charge a fee for service as oppose to an executor's commission for administering your estate. the Public Trustee are not automatically appointed to adminster the estate. Your family members can make an application to the Supreme Court to be the personal representative of your estate (it's called Letters of ADministration).

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  Starlight8 on 21/07/2017 - 13:05

  Hi there,

  thanks for posting.

  I was wondering if i need a will.

  Husband and Wife - we own a car and a property in Sydney. Pretty simple.

  I was wondering if its worthwhile going to see a lawyer to write one up or just a DIY job will do the trick.

  In the end, i believe if one goes before the other, the other will just inherit everything we have.

  Thanks so much :)

  • 

    mr_vino89 on 22/07/2017 - 11:44

    +1

    Sorry for the late reply.

    I always recommend a Will especially if your circumstances are likely to change down the track when you acquire more assets and money etc. And definitely go see a lawyer as they will give you tailored professional legal advice to suit your circumstances :)

    Just an FYI, if your house that you own with your husband is held as "Joint Tenants" then upon his death (and by operation of law) the property will be transferred to you automatically, vice versa. If it is held as "Tenants in Common" (which is not very common for married couples) then upon his death his share will form part of his estate and deal with per the Will (or if no Will, then in accordance with the rules of intestacy of that particular state/territory).

    Hope this helps.

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  lesleigh on 22/07/2017 - 08:50

  WE have made a will that gives our house to our two grandsons, to live in sell or what ever.The problem is that we added the clause that their aunt and father can live in this house if the need arises .my son recently split with his wife and my daughter is on disability pension and I would hate to see them with nowhere to go in their old age, so basicly they cannot sell till dad and aunt die or get lucky. But I was told we cannot make this stick as once we are gone it's up to the grandsons on what happens.Is this correct thank you

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    ozbjunkie on 22/07/2017 - 14:29

    It would be worth telling the OP whether the clause is a life tenancy, or a right to reside, exactly what conditions are put on the life tenant, and clarifying that your grandkids are the remainders.

    Also, who are the executor(s) of your estate, and will there be enough money in the testementary trust to maintain the property / pay for council rates.

    Things can be messy if the life tenant doesn't maintain the property or pay for rates and there's no cash in the trust. As my question below will indicate.

  • 

    mr_vino89 on 23/07/2017 - 18:48

    +1

    Hi there,

    It depends on the actual construction and wording on the Will. If it is a condition that they cannot sell the property until their dad and auntie die then the property is held by the executors (for the Grandson) until Dad and Auntie die. These clauses can stick so long as they are drafted correctly.

    You need to consider the practicality of these arrangements and how the executors are able to administer that part of the estate. Otherwise as ozbjunkie said "things can be messy" and the grandsons won't benefit from the property for a very long time.

    Just as further comment, you should also considering having a Special Disability Trust for your daughter created under your Will to assist in provide the future care, accommodation and medical needs for her. Assets held in the trust for her (at a certain threshold) will not count towards her assessable assets (for the purpose of determining the beneficiary’s eligibility for a pension). Worth seeking legal advice about this particular issue. More general information here: https://www.humanservices.gov.au/customer/services/centrelin…

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  ozbjunkie on 22/07/2017 - 14:39

  Hi Op.

  I am the executor and remainder person in my grandfather's property, probate was granted and assets disbursed 5 years ago. My mother holds a life estate (it is not clear to me whether this is a life interest or a right to reside). My name alone appears on the Title of the property with no restrictions noted.

  Unfortunately, she doesn't keep the place in good repair, pay the council rates or the water, even though the will stipulates that she must.

  What are my options here?

  I'm resistant to take her to court due to costs, and the fact that she can still contest the will under the succession act (even though she is out of time, caselaw I have read indicats extra time is liberally granted).

  I'm a little resentful at the prospect of paying someone else's rates, water and maintenance for the next several decades.

  What's your professional (and even personal) advice?

  • 

    mr_vino89 on 23/07/2017 - 19:14

    +1

    Hi ozbjunkie,

    Yes it will depend on the wording of the Will and the conditions of her life interest or right to reside. They will usually making it a condition that the person living there must maintain the property, pay bills etc etc.

    If she is not paying for those expenses than it is a debt owed to the estate in which case you should write her a letter of demand or take legal proceedings against her as the executor.

    You are not obliged (in your personal capacity) to pay those expenses for her unless the Will stipulates that those expenses must come out of the Estate.

    Even though your name appears on title, you are still hold the property on trust for the beneficiary/beneficiaries until the life interest or right to reside ends or is surrender by her.

    She can challenged the Will however she will need grounds to do so and as you mentioned, need to seek leave to bring an action as she is outside the time limitation for doing so.

    You can also consider renouncing your role as the executor/personal representative of the estate if you don't want to deal with those issues but another must be nominated.

    Some non-legal advice/personal comment: cut the services to the property or let the bills become overdue and the the service companies will cut the service for non-payment. She will prompt her to reconsider ;)

    Hope that helps.

    • 

      ozbjunkie on 23/07/2017 - 23:29

      Thanks for the informative reply, and for spending the time to create this thread.

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  nugley on 14/09/2017 - 22:37

  Hi mr_vino89,

  My parents are wanting to write their wills. Would you recommend drawing a will through a Public Trustee or a legal practitioner, and why?

  Thanks.

  • 

    mr_vino89 on 15/09/2017 - 08:13

    Hi Nugley, thanks for your msg.
    I always recommend people to have a Will prepared through a legal practitioner. You are able to get more in depth legal advice and a tailored Will to suit your circumstances.
    If they are based in Brisbane, I am happy to have a chat with them over the phone. Feel free to PM me :)

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  squeeb on 27/06/2018 - 19:51

  Hi Mr Vino,
  Could you let me know the best way to finding someone who is knowledgeable, experienced and a good at estate litigation (challenging a will)?

  • 

    mr_vino89 on 15/08/2018 - 22:29

    Hi Squeeb. sorry for the late reply. I haven't been following the AMA for awhile.
    The firm I work for has an litigation team that also deals with estate litigation. PM if you have any questions or want me details (if you still need assistance).

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  timmy_tam on 06/07/2018 - 12:41

  Hi OP

  question I have is, how do I go about find a good soliciter/legal practioner?

  word of mouth is a good start, but where else would you suggest?
  free legal clinics who might have recommendations?

  If I start with just searching google, I'd end up reading reviews and I generally take reviews with a grain of salt

  hope my question isn't as dumb as I make it out to be

  thanks