Help! Need a Recommendation for a Family Lawyer

Jazza2400 on 25/02/2019 - 15:56

Hi folks,

Your recommendations for a family lawyer would be appreciated - for these things I don't really want to Google one and hope for the best. We are in QLD but would need to do everything over the phone/email as spread out across the state.

Situation is Parent A died a few years ago, leaving behind a partner (parent B) and 3 (largely adult-aged) kids. Estate left to 3 kids. Not an acrimonious situation and kids agreed for estate to continue be held by Parent B (half of family home so not exactly a liquid estate, and not massive by any means) as the view that money would be there for emergencies. Verbal agreement and no documentation to support this.

Parent B is now getting remarried to Person C. Kids want to (and this is where the lawyer is needed) quarantine the estate of Parent A via some kind of legal agreement, so that in the event Parent B divorces from Person C down the track, Person C is free to make a claim on Parent B's assets, but not on the share that was attributed to Parent A.

Parent B is happy to sign any kind of legal agreement. Parent B has offered to hand over the estate attributed to Parent A prior to the wedding, however this would likely lead to Parent B being in a financially distressing position which nobody wants.

To complicate matters, Parent B has had a small child with Person C. So based on a very rudimentary understanding of family law, any kind of prenuptial agreement would be rendered null and void by the Family Court (if things went that way) due to the interests of the child needing to be protected. Adult kids do not want to defraud Person C, rather just want to ensure that Parent A's share of years of hard work don't go to enriching Person C.

Nobody wants to set up a family trust as those things are apparently PIA to run (filing tax returns every year etc). Parent B and Person C are not yet de facto, despite having a child.

Is there some kind of enforceable legal agreement/contract/instrument that can be drawn up? Have you got a family lawyer you would recommend to do this?

General Discussion Lawyer

Comments

  • HighAndDry on 25/02/2019 - 16:03
    +1

    You don't need a family lawyer, you need a Wills and Estates lawyer. So at least you know what you're looking for. Off the top of my head:

    Parent B has offered to hand over the estate attributed to Parent A prior to the wedding, however this would likely lead to Parent B being in a financially distressing position which nobody wants.

    Why can't Parent B just lease the property back from C once it's transferred for some nominal amount on a long-term fixed term lease?

    Just very VERY roughly, don't depend on any agreement if it touches on Family Law unless absolutely unavoidable. Avoid assets passing through Wills too if at all possible. Talk to a wills and estates lawyer. Consult a family lawyer if it can't be solved otherwise.

    • Jazza2400 on 25/02/2019 - 16:13

      Thank you, I don't understand what you mean about Parent B leasing back from Person C though?

      The property is currently tenanted in another state as Parent B has just moved in with Person C in QLD.

      Is this a bread and butter job for a wills and estates lawyer or is there a firm you would recommend?

      Cheers again.

      • HighAndDry on 25/02/2019 - 16:20
        +2

        Sorry, I meant to say lease it back from the kids because you mentioned Parent B in a financially distressing position if the property is transferred so I assume you meant they'd be kicked out of the family home. If it's an investment property, why would Parent B be distressed financially? Just get the kids to transfer the rental money to Parent B even after the property is transferred.

        Is this a bread and butter job for a wills and estates lawyer or is there a firm you would recommend?

        Probating the Will is a fairly bread and butter job for a wills and estates lawyer. I'm slightly concerned because (and these are general comments, not legal advice):

        1. There's a time limit for Wills to be probated after the passing away of the deceased (so I hope that's already been done);

        2. I hope a lawyer was consulted on not transferring the property at the time of the Will being probated because there may have been tax (and more importantly, transfer duty) implications; and

        3. The situation now is slightly more complex but still fairly bread-and-butter Wills and Estates territory.

        Unfortunately no recommendations as I'm not in/from QLD.

        • Jazza2400 on 25/02/2019 - 19:56

          Thanks again, Parent B used the family home as security for other investments (and those have suffered with recent property value declines) so it is all a bit tangled.

          The family home remains in sole name of Parent B, as it would have been a clustercuss to add three kids onto it (who did not have the capacity to service the debt on it). Since the kids have not contributed to the servicing of the debt since that time, it seems fair that a dollar figure will be agreed on as the amount to be 'quarantined' (which was the share of Parent A at the time of their death).

          Duly noted re general comments and also appreciate everyone's time taken to comment as well.

          • HighAndDry on 25/02/2019 - 19:58
            +1

            @Jazza2400: Okay that does sound incredibly complicated. I think seeing a lawyer in person would be the only solution, and a 'full service' law firm would be best because this could easily require expertise in multiple practice areas.

  • Ti-au on 25/02/2019 - 16:15

    Hmmm….

    Its very hard to advise.

    Family law would not help with small child. What was stated in the Will (testamentary trust would be v.good)? When did Parent A die? Any life estates provided? (im guessing no).
    Thats will & estate matter.

    Person C matter could fall under family law.

    You can look up Doyles law guide. It's going to cost them tho….
    https://doylesguide.com/leading-wills-estates-law-firms-quee…

    The names don't change that much.

    • Jazza2400 on 25/02/2019 - 20:00

      Estate was administered, rather than executed. Thanks for the Doyles tip. As a general idea, how much much do you think would be reasonable for advice from a 'recommended' one on that list? We've never engaged the services of a lawyer so have no idea what to expect and, whilst happy to pay for good service, don't want to pursue first tier if third is our appropriate option.

  • EightImmortals on 25/02/2019 - 16:24
    +1

    Just got our wills done by happen-stance (no that wasn't the name of the legal firm)IANAL but if house is rented out already, then why not get parent B to sign over their half to the beneficiaries Huey, Dewey and Louie and have them pass the rental income through to parent B (so they don't go broke) while they retain ownership meaning Parent C can't get hold of it?

    Just a thought. :)

    • Jazza2400 on 25/02/2019 - 20:05

      Parent B has said they will sign over no problems (very grateful that this hasn't torn the family apart and that we can discuss amicably) but Huey and Dewey have no capacity to service remaining debt on house and it might give parent B a ride up the wazoo as their finance is tied onto the home.

      But a good reminder that Parent B will need to re do will after getting married!

  • djkelly69 on 25/02/2019 - 16:56

    Did A and B own the family home together? If so, was it as joint tenants or tenants in common?
    Did A have a will?
    Were there any other assets besides the family home?

    Also this:

    Parent B and Person C are not yet de facto, despite having a child.

    is an interesting statement. Do you mean they are not living together?

    • Jazza2400 on 25/02/2019 - 20:19

      House was only in Parent B's name but for all intents it was both of theirs. No valid will and they have just moved in together (de facto is 6 months cohabitation so wasn't sure whether any agreement is effected by their de facto status?).

      • djkelly69 on 25/02/2019 - 21:18

        The house/estate stuff sounds complicated, so would just echo most of the other comments to recommend specialist legal advice.

        de facto is 6 months cohabitation

        FYI this is not correct. Defacto (under the Family Law Act) looks at a range of factors. The fact they are living together and have a child together are pretty indicative that they are in a defacto relationship, but you should really look at all of the factors.

  • healstreet on 25/02/2019 - 17:26

    Go to an Accredited Specialist in Succession. Follow link (and search for Specialty in Succession): https://services.qls.com.au/Web/FindLegalServices/Accredited…

    Any lawyer on that list will be able to help. I suggest avoiding the larger firms as they usually charge more. Ring them up, ask for a quote and give a quick summary.

    As a recommendation, I suggest Mark Oswald at Cartwrights.

    • Jazza2400 on 25/02/2019 - 20:35

      Didn't know succession was a specialty so thanks, will contact Cartwrights.

  • TheMindsetTraveller on 25/02/2019 - 18:22
    +1

    Go to your respective state's law society's website and find an accredited Wills and Estates specialist.

  • crashloaded on 25/02/2019 - 18:44

    The best suggestion i can give is make any lawyer you're considering show you a range of cases they have worked on that are similar to yours, otherwise you will be paying a lawyer to learn your case law.

    • HighAndDry on 25/02/2019 - 19:31
      +1

      That's one way to piss off every lawyer you meet. Not to mention they really can't unless they go to the trouble of redacting all the personally identifiable information in all those cases.

      • crashloaded on 25/02/2019 - 23:19

        Hasn't pissed off any lawyer i've met, if i'm paying for a professional service, you can prove it before i retain you. Not to mention a lot of cases have publicized decisions. How do you think lawyers learn case law?

  • elgrande on 25/02/2019 - 18:53
    +2

    If your parent has already:

    A) found a new partner
    B) had a child with the new partner

    The horse may have already bolted.

    • Lysander on 25/02/2019 - 20:52

      Depending on the length of time I would agree.

      Very likely that it is too late already now unless there exists a prior implicit agreement (or one could be construed by the court although that presumes the court is willing to do so and assume the parties legal intentions).

      See either a family or trust lawyer (I know you do not want a trust but it might be the best solution) ASAP.

  • Ti-au on 25/02/2019 - 19:04

    There is some odd advice.

    but if house is rented out already, then why not get parent B to sign over their half to the beneficiaries Huey, Dewey and Louie and have them pass the rental income through to parent B

    Stamp duty and CGT implications (and also centrelink payments).

    You cannot just give away something especially if it has already been given to you via a Will.

  • davel on 25/02/2019 - 20:17

    You are best using a family estate lawyer like the one mentioned who specialise in this.

    Having said that the new kid would have some claim to the estate as a dependant of one of the parents, i assume only to parents B & C share of assets.
    The other option (and I'm no lawyer, just somebody who knows somebody who's paid half a mill in fees to the lawyers to fight it out) that a mutual will and constructive trust may be an option, however since A is deceased and the probate seems to be granted and executed?

    So basically both sides agree not to change the contents of the will without the others agreement and should one die the the will is "binding" (Mutual will)

    When i say "binding" its common knowledge that should the matter make it to court that the will may not be upheld, hence the family law specialists who play this field as its very lucrative. A will is not concrete.

    Long story short you can set it up as tight as legally possible with the best lawyers but from what I have seen it still can be contested.

    It does not seem like an overly complicated case, but paying for it now (even though it may seem expensive) will reduce issues later, but looks like you need to address the "Verbal agreement and no documentation to support this" ASAP before marriage between B & C.

    I would assume not a family trust but maybe a sort of "constructive trust" for Parent A where the assets are beneficially held for the trustees.

  • davel on 25/02/2019 - 20:27

    You are best using a family estate lawyer like the one mentioned who specialise in this.

    Having said that the new kid would have some claim to the estate as a dependant of one of the parents, i assume only to parents B & C share of assets.
    The other option (and I'm no lawyer, just somebody who knows somebody who's paid half a mill in fees to the lawyers to fight it out) that a mutual will and constructive trust may be an option, however since A is deceased and the probate seems to be granted and executed?

    So basically both sides agree not to change the contents of the will without the others agreement and should one die the the will is "binding" (Mutual will)

    When i say "binding" its common knowledge that should the matter make it to court that the will may not be upheld, hence the family law specialists who play this field as its very lucrative. A will is not concrete.

    Long story short you can set it up as tight as legally possible with the best lawyers but from what I have seen it still can be contested.

    It does not seem like an overly complicated case, but paying for it now (even though it may seem expensive) will reduce issues later, but looks like you need to address the "Verbal agreement and no documentation to support this" ASAP before marriage between B & C.

    I would assume not a family trust but maybe a sort of "constructive trust" for Parent A where the assets are beneficially held for the trustees.

  • relentless on 25/02/2019 - 20:30

    ABF Legal based in QLD

  • Typical16-bitEnjoyer on 25/02/2019 - 21:29

    Who did the Probate/Administration for Parent A? If a professional firm how exactly did "Verbal agreement and no documentation to support this" occur?

    You need a lawyer experienced in Wills and Estates. You also should tell them the entire history and give them written authority to obtain the P/A file from the above firm.

  • [Deactivated] on 26/02/2019 - 00:05

    Post it on reddit r/legaladvice

    I have saved a small fortune here.

  • sam-1966 on 26/02/2019 - 16:57

    Will PM details of someone.

Login or Join to leave a comment
Login Join