[AMA] I am a Wills and Estate Planning Lawyer in Queensland

mr_vino89 on 13/03/2019 - 16:58
Last edited 14/03/2019 - 15:56

I am a Wills and Estate Planning Lawyer in Queensland. I'll answer what I can lol :)

Also practice in general property and commercial law as well.

Disclaimer:

You should seek independent legal or other professional advice before acting or relying on any of the content here or on the internet generally.

There are free legal advice clinics set up in Qld. See link below for locations: http://communitylegalqld.org.au

Also, I am only familiar with the Qld Succession Law so most of my answers are general or based on what I know in Qld. If you are question relates to a different state, I highly recommend that you seek independent legal advice from that state as it is likely to differ from Qld.

Feel free to PM me if you have any confidential enquiries.

Introduce Yourself

closed Comments

    • mr_vino89 on 14/03/2019 - 18:37
      +1

      Wills get challenged all the time. Depending on the size of the estate and the family circumstances, a lot of them end up resolving outside of court.

      You can exclude anyone from your Will and state your reasons for doing so. However, there are certain classes of people who have the right to challenge the will and make a claim against the estate (e.g. spouse, children (including adopted children) and people who were financially dependent of the deceased).

      • rlay3 on 14/03/2019 - 18:58

        So if put in my will that I want a friend to take all ownership of a house entirely in my own name, that can be challenged by spouse/kids ? I don't see how that works, if it was what I wanted then why does the law allow it to be challenged?

        • andyken on 15/03/2019 - 19:30

          Because the law might think you sign the will with your friend gun in your head

          • rlay3 on 16/03/2019 - 10:34
            +1

            @andyken: But if I'm alive I'd be able to distribute my assets how ever I'd like an no one could challenge me right?

            I thought the point of a will is to do this exact same thing after I'm dead. With a verified will, maybe a video recording and other evidence, I don't want some judge telling me my will is "unfair" and then deciding where my stuff goes on my behalf. I'd be a livid ghost in that court room.

  • Gohan on 14/03/2019 - 13:20

    Parents don't have a will, and I can't convince them to get one, and they won't give me a valid reason, stubborn and frustrating AF.

    Not a whole lot of assets, main one being the family home, whom they currently live in with my elder sibling and their family. I live in a different state to them, they're in VIC.

    What's the likely outcome of this house?

    • dontask on 14/03/2019 - 15:10

      Depends on a few things.
      1) On the title of the house, who are the owners? Are they Joint Tenants or Tenants in Common?
      2) If they are Joint Tenants (this is more frequent), then whoever dies first leaves the house to the surviving partner.
      3) When the last surviving member dies, it depends what their Will says (or the VIC intestacy laws if there is no Will).

    • mr_vino89 on 14/03/2019 - 18:42
      +1

      I can only comment on this if this their family home is based in Qld. Assuming that it is though, if the property is held "jointly" between your parents (instead of tenants in common) then the property will automatically by law transfer to the survivor of them even if they didn't have a will.
      If it's tenants in common - the rules change - that person's share in the property is deal with under the estate. If they don't have a Will than their are certain rules which determine how the estate gets paid. In Qld, it's the first 150K that goes the surviving spouse and the rest of it gets divided between the surviving spouse and children. Not good for the survivng spouse as they may miss out on full ownership of that property.
      This is why a Will would be important.

    • tagin on 15/03/2019 - 15:48

      They probably have one already but the beneficiary is the sibling that's living with them but they don't want to let you know!

      Just jokes.. but plausible.

  • dontask on 14/03/2019 - 14:24

    Hi @mr_vino89. Just wondering how many years you have been practicing and whether or not you have a specialist accreditation in Wills and Estates law.

    • mr_vino89 on 14/03/2019 - 18:43
      +1

      hi, more than 5 years experience. I don't have special accreditation in that area. I plan to at some point in my life to try and get it lol

  • Drphods on 14/03/2019 - 14:31

    Regarding testamentary trusts, my understanding is they allow minors to receive income (from the estate) and be taxed as adults, rather than at penalty child rates. Can a testamentary trust be created after death, by the surviving spouse, even though it wasn't stipulated in the will?

    • dontask on 14/03/2019 - 14:59
      +1

      Yes, income from Testamentary Discretionary Trust (TDT) given to minors allows them to be taxed at adult rates.

      In simple terms, you can't create a TDT unless already specified in the will. The Will actually becomes the trust deed of the TDT.

    • mr_vino89 on 14/03/2019 - 18:44
      +1

      I agree with was dontask said

  • JIMB0 on 14/03/2019 - 15:03

    If someone left all their money to a charity can the family (no dependants) contest the will.

    • mr_vino89 on 14/03/2019 - 18:45
      +1

      yes the family can challenge the will and make a claim against the estate. There are only certain people those who have the right to make a claim, not everyone family member is entitled to do so.

  • MessyG on 14/03/2019 - 16:21

    How do you determine testamentary capacity?

    • mr_vino89 on 14/03/2019 - 18:46
      +1

      Generally self assessment. And there are certain questions we ask like - name, age, what assets you have and if they understand what their wishes are etc? sometimes its pretty clear, other times we require a medical certificate to prove the capacity.

      If they don't have capacity, you can apply to the court for a statutory Will.

  • Riken on 14/03/2019 - 16:35

    Hi Mr_vino89. Sadly my mother passed away several months ago. She has left me in her will half of her house, the other house going to my sister. I will reach pension age next year. Iam afraid that this half share of the house will affect the centrelink assets test making me no longer eligible for the pension, or reduce my pension. I do not want to sell the half share of the house and will derive no income from it as I want my sister to beable to live in it. Is there anyway that the half share of the house be exempted from the assets test. I also have a disability and was wondering if there were any way for the asset to be exemtpted eg special disability trust.
    Is there also a legal way to give my sister my half share of the house legally without it being deemed as gifting? Appreciate it if you could help

    • Ti-au on 14/03/2019 - 17:58
      +2

      If the asset was put in a special disability trust then yes.

      You will need to get proper legal advice about what you can do, that is way beyond the remit of a forum.

    • HighAndDry on 14/03/2019 - 18:45
      +2

      There's no legal obligation to accept what you're bequeathed in a will. But check that it would fall to your sister if you refuse the bequest before you do so.

    • mr_vino89 on 14/03/2019 - 19:57
      +6

      Hi Riken, firstly sorry to hear the loss of your mother. My condolescences to you and your family.
      I am not too familiar with how the asset test is worked out with centrelink but unfortunately if you receive an inheritance from an estate it is likely to affect your pension if you disclose it to them.
      Special Disability Trust is a technical area - I would recommend that you seek proper legal advice and also financial advice on how this can be set up. It may be possible to have the property transferred to the trust - however you'll lose the capital gains exemption for the property.

      My understanding is that Centrelink aren't to fond on people "gifting" things like property to other people - they question the genuineness of it and may end up take the value of that gift into consideration as part of the assets test. Worth asking Centrelink or Financial Planner generally though.

      yes, you can reliquinish your right to receive a benefit under the Will. Please beware that this may affect your estate when you pass away which means that you spouse and children (if you have any) could potentially miss out.

    • brad1-8tsi on 15/03/2019 - 10:56
      +1

      My father was in a similar situation and it was a nightmare and caused a lot of ill will, especially when his sister, who lived in the house rent free, sent the rates notice, insurance, etc to dad. He was a big softy and used to pay it and it made Mum's blood boil.

      I'm not even sure he got any benefit when she died. I think one of the freeloader kids took it over.

  • Hundo on 14/03/2019 - 17:06

    Hi OP, thanks for taking the time to answer all these questions.

    My parents are getting quite old now, its just my brother and I in the family and we come from Asian descent so talking about Wills is a bit taboo.

    So my question to you - When my parents pass away and there is no Will, what would happen to their assets (1 house)?

    • Ti-au on 14/03/2019 - 18:00
      -1

      Sell house, divided proceeds. Hope no one challenges will.

    • mr_vino89 on 14/03/2019 - 20:22
      +1

      Each state has their own laws that deal with distribution estate assets where there is no Will. I can only comment from a Qld perspective.
      If the house is held by your parents as "joint tenants" (instead of tenants in common) their share in the property will go the survivor of them automatically by law (even without a Will).
      If the house is held as tenants in common then that parent's share is dealt under their estate in accordance with the rules of intestacy. What does this mean? In Qld, the rules essentially apply as follows;

      • first $150,000.00 of the estate gets given to the surviving spouse;
      • everything else gets divided between the surviving spouse and children equally.

      As you can see, the surviving spouse does not automatically receive everything at first instance including full ownership of the house.
      If they want to avoid this then best have a Will where they give everything to each other and then the children.

  • wallet72 on 14/03/2019 - 17:45

    If one of the executors refuses to do anything because he didn't get what he wanted in the Will, what can the rest of us beneficiaries do to force the situation? It's gone from 'I want to make a claim' to 'I want $50k upfront' - not that he will put that in writing.

    • mr_vino89 on 14/03/2019 - 20:25
      +4

      You can apply to the court to have him removed as an executor and appoint someone else if he is not administering the estate properly.
      If he is wanting to make a claim against the estate to get more out of it, it would be in his best interest to resign as the executor otherwise there would be a conflict of interest.

    • brad1-8tsi on 15/03/2019 - 10:48

      For this reason I appointed 2x executors that don't get any benefit from my estate. They are both mates and I asked them first. I also appointed my Sister (who doesn't benefit either) as an advisor as she knows more about my wishes than anyone else but isn't good with admin or finances.

  • Bullion78 on 14/03/2019 - 18:04

    I dobt have a will. One of those things I've been meaning to do for years. How much does the gov take as a percentage if i was to die without one?

    • canyoudoitcheaper on 14/03/2019 - 20:38

      Nothing. Unless nobody wants to administer your estate and the Public/ State Trustee applies for administration

    • mr_vino89 on 14/03/2019 - 20:51

      Nothing. they only only charge a fee if they administer your estate. But usually a family member will act as the executor of your estate before they get involved.
      My advice: get your Will sorted lol

  • wkd on 14/03/2019 - 18:41

    how long does it usually take to get a victorian probate resealed for qld, if there is no contesting to the will

    • mr_vino89 on 14/03/2019 - 20:53
      +3

      I've only had to do one and it took about 4 weeks. Depends on what assets there are in QLD, a reseal is not always required. For e.g. with property, the titles office will accept and recognise probate from other states with a reseal.

  • Taita on 14/03/2019 - 19:06

    Thanks OP for your time.
    What measures should be taken to avoid disputes with wills involving blended families?

    • mr_vino89 on 14/03/2019 - 21:04
      +3

      You could consider preparing mutual wills (or mutual will contracts). These are essentially wills that form a legally binding contract between two people that has the effect of:

      • Having both of the wills drafted in terms that are agreed by the parties making the wills; and
      • Prohibiting either party from revoking or amending their will without the agreement of the other. This means that following the death of the first party, both wills are from that point irrevocable and cannot be amended.

      If a the surviving spouse removes or amends their Will, the beneficiaries under the first Will may bring an action against that spouse for a breach of contract.

      Although these types of Wills does allow alot of flexibility if the other spouse remarries and moves on etc. But it will depend on your family circumstances and how long you've been together etc to see if this type of will suits you.

      Otherwise, some couples rely on "pure trust" and trust that will leave things for each of their respective children and step-children.

      For your super - usually treat separate from your estate. consider having a binding death nomination and nominating that it gets paid to your spouse or children. Best speak to a lawyer about this though to get a better understanding on how this works.

      • Taita on 14/03/2019 - 21:23

        Thanks for the detailed reply. Will definitely look into things as I didn't think about the super nominations.

  • curious101 on 15/03/2019 - 05:25

    OP, I had a friend, who passed away approx 1 year ago and I loaned him some money without a written agreement. I do have bank transactions to show, facebook chat and transactions to show he was paying me back. I didn't want to bring up the issue with his family (parents/brothers etc.) back then, but it looks like his wife (who he was planning to divorce and was living separately from) got all the assets. I was wondering what would be the approach to claim what he owed me. Amount would be less than 3K, QLD location.

    • anzacpaul on 15/03/2019 - 10:01

      Personally, i'd let it go and move on with your life.

    • brad1-8tsi on 15/03/2019 - 10:44

      Give her a call.

      Unless she's doing it tough she should be OK with it. I wouldn't bother with anything beyond a polite conversation though.

    • HighAndDry on 15/03/2019 - 13:52

      There are time limits for making claims against an estate - that's why there are publication and time-frame requirements for probating wills and administering estates. Especially since you were aware of his passing, if you've passed that time limit there may be very little you can do.

    • mr_vino89 on 15/03/2019 - 18:06
      +1

      yes, be aware of the time limits of making a claim against the estate for a debt. In saying that, if the estate administration has not been finalised, you can still make a claim against the estate to try and recover it. If you know who their lawyers are, I would send them a letter or email asking for the debt to be paid back to you. if you contact his Wife directly, she may make it quite personally and not take it very well.

  • Aerith-Waifu on 15/03/2019 - 05:39

    Hi, say if A is married to B and they have a house under joint Tenant,

    I understand the remaining half will be automatic goes to the A if B dies, so with the house now under A”s name. Can the children of B challenge A on the half B once owned? Perth location

    • HighAndDry on 15/03/2019 - 13:54
      +1

      Each State has different laws, WA more so (because you guys dragged your feet in joining the country). In NSW there are ways in which the children of B can make claims against A for the portion which B used to own, and there may be similar provisions in WA, but you should consult a lawyer in WA.

    • mr_vino89 on 15/03/2019 - 18:09
      +1

      The house does not form part of B's estate once it gets transferred to A (as the surviving joint tenant) and B's children can't make a claim for any or part of that house. They may make a claim against the rest of B's estate (if tehre is anything left in it).

  • noyesmaybeok on 15/03/2019 - 07:31
    +1

    What's the best way to "hand over a business" in a will - aka all documents, passwords and so forth?

    • mr_vino89 on 15/03/2019 - 18:12

      it depends on how the business was structured when it was first set up and who actually owns the business. You will find that most businesses are owned by companies or trusts (usually upon the advice of the accountant).
      If the deceased owned shares in that company that owns the business, he/she can leave those shares to certain people in their Will. They will then have control over the busines.
      You can make a direction in your Will to provide details of where all the inforamtion relation to the business is held so the executor to deal with it.

  • brad1-8tsi on 15/03/2019 - 10:41

    Thank you for this AMA. I'll start with "bigger picture" questions.

    1) How do people know where your will and other important documents (House title, listed and unlisted share details, bank details, etc) are? Is it just a case of having your administration and filing in order?

    2) If you have a substantial share portfolio and you know it's fairly good (there's always a couple of stinkers) and you wish to leave it to your children, is there some way of directing them to transfer it to their name and letting it grow/ pay dividends or is it better to liquidate the holdings and pay any CGT, etc and hope they don't just piss it up the wall?

    3) I have a girlfriend who I'll probably never marry or live with but she's a keeper. I'd like to leave her some cash if we are still together (You never know what might happen in a relationship). How would you leave an amount of $50k per year of knowing each other and topping out at $500k after 10 years if you don't actually know what your assets will be when you die (I'm transitioning to draw-down phase)? (NB: I just want it to come out of my cash balance and possibly sell some shares but not come from my property or superannuation). Is this possible or is it just too hard?

    4) I have a previous marriage. The financial consent orders are complete and settled. She got ~$150k more than the worst case scenario suggested by my lawyer so she did very well out of the process. The divorce is also complete. I'm told she could still have another bite at the pie if I die. Is this correct? If so, is it possible to totally block her from any claim on my estate?

    Thx

    • mr_vino89 on 15/03/2019 - 18:33

      1. Will - there is not registry where Wills are kept. Usually the law firm that prepared the Will or Public Trustee will hold the original. Most people have a copy of the Will somewhere in their home which usually provides details of the firm that prepared it.
        House titles - each state has their own system of dealing with it. In Qld, most people no longer have paper titles as its all recorded electronically. however there are still people who hold paper titles at home somewhere. If they have losted the title deed or it can't be found, the estate will need to go through a process with the titles office to request that the original title be dispensed and noted as lost - pretty long process.

      2. You can only make a direction/wish that they hang onto the shares but usually once its gift to them, they are entitled to sell it.

      3. You can stipulate conditions of the gift and how it is be given to her over a period of time. It needs to be carefully drafted though otherwise the gift could fail or the executors are forced to sell some of your assets (like House etc) in order to pay that cash to your gf. This could result in your children receiving less than what they anticipated or nothing at all.

      Super - you could consider make a binding death nomination and leave that to here. If she is classifed at a "defacto spouse" at the time of your deaht, she won't have to pay tax on it. You could then leave everything else to your children. In saying that, seek legal and financial advise about this arrangement as it may not be favourable to your children.

      1. She could still make a claim for the estate however what you have provided to her before your divorce will still be taken into consideration. You should state in your Will or a seperate document like a "Statement of wishes" or statutory declaration the reasons why you have left her out of the Will. This will give the executors guidances why you have set up your will in a particular way and the reasons for it.
      • brad1-8tsi on 18/03/2019 - 09:31
        +2

        Thanks for all that. Your time and effort is much appreciated and encourages me to extract a digit and get it done properly (I have a "draft" at home in a prominent spot).

        That's an great idea about giving reasons why the ex-wife is out of the will. I'll include the letter from my family law solicitor telling me I folded too early but he understands I had to make a commercial decision to settle as it was still cheaper than going to court.

        I already have a binding nomination for Super that goes to kids.
        Basically:
        Kids: Super, house, shares
        GF: Cash

        I'll be doing my best to stay alive long enough so that there is only the house left when I kark it. :-)

  • SnakeCasablanca on 15/03/2019 - 11:09

    I live in a situation where my parents keep moving my siblings back home with them when times get hard to 'help them out'.

    We are talking men in their 30's who can be sitting there not working and paying no rent.

    I have two siblings and all three of us are executors to the will.

    What happens if one of my parents die and one of the children are still living at home. How do the other two siblingsgo about moving them out? What if they just refuse to move? Could this be difficult?

    • HighAndDry on 15/03/2019 - 14:00
      +1

      Forgive me for giving practical, not legal, advice. Because generally if you need to go the legal route, no one wins but the lawyers.

      First - get your parents to make wills. Make sure the wills are ironclad as to who gets what (and especially why, if it's the case, the worse-off lazy children aren't getting more of the estate).

      Second - have only one executor, it'll be almost impossible to move someone who's an executor and a beneficiary out of a house that forms part of the estate. Not actually impossible, but hard to the point it's usually cheaper and easier to throw money at the problem than lawyers.

      Third - either make it clear (via documents or written correspondence) that the children don't actually live there, or have an actual tenancy agreement written up (so there is a clear process to evict them).

      My preferred option would be to try and have the parents transfer the property to you before they pass - if you're the only productive one in the family, maybe you can sell it to your parents that they can get some equity out of the house if they refinance it into your name, so they can go on holidays, cruises, etc.

      • SnakeCasablanca on 15/03/2019 - 16:31

        Thanks. You've pretty much confirmed what I thought.

        They have wills. I also don't really care about the free ride the siblings are getting. Not interested in anything other than an equitable split.

        I just don't want a situation whereby some sponge gets veto power about whether they have to move out or not. I imagine it would make an already terrible situation a lot worse.

        • HighAndDry on 15/03/2019 - 17:41

          To quote a wise man of our age: The safest hands are our own. You can always split the asset equitably later after you have it under your control first.

        • brad1-8tsi on 18/03/2019 - 09:38
          +1

          The will should use words along the lines of
          "The property is to be sold within x years of the date of death and equally divided among…"

          That's where my Dad got caught with his Sister and her grown up children. The will just said "The property is to be equally divided" and he got stuck with half a share of a house that his dead-beat sister didn't maintain or pay rent or pay for any of the fixed overheads. To make matters worse, he was retired and the property was counted as an asset and affected some of his payments / allowances.

          • SnakeCasablanca on 18/03/2019 - 10:08

            @brad1-8tsi: Yeah this is my biggest concern.

            • brad1-8tsi on 18/03/2019 - 10:23
              +1

              @SnakeCasablanca: OTOH, I have another friend and they live with their partner but the partner is well aware he has no claim on her estate.

              Her will says "I leave my house to my kids but "person X" is entitled to live in it rent free until they are deceased. A sum of $100k is to be placed aside to cover standing overheads and repairs."

              I also had a mate who had nothing when he moved in with his partner and it was made clear to him that the house was going to her son. The house owner got cancer 5 years later at 55yo and died. Her 18yo son evicted my mate straight away with no recognition of the fact that he'd cared for her for the previous 12 months. He was up the creek with no money, a low paying job and nowhere to live.

              Sometimes a bit of compassion is needed.

    • ozbjunkie on 15/03/2019 - 15:21
      +1

      In NSW at least, being an adult dependant as evidenced by living at home for free will strengthen your siblings claims for assets under the family provision act. The courts may award them a larger share than you (or than directed in the will) because of evidence of financial dependence. Sucks.

    • mr_vino89 on 15/03/2019 - 18:38
      +1

      If the property is held by your parents as "Joint Tenants" then upon teh death of one of them, the other will automatically by law acquire full ownership of the property. They are then within their right to ask your siblings to move.
      If it's held as tenants in common - I highly recommend they either change the tenancy to "joint tenants" or prepare a Will which gives everything to each otehr first.

      If both parent's die leaving everything to the children, you will all need to decide what happens to the home. If they are still leaving then after your parent's pass away and the property has not been sold yet, the estate is entitled to charge them rent etc. However, charging them rent means the estate will need to pay income tax and capital gains tax (be careful about this).

  • cocomelon on 15/03/2019 - 11:29

    Hi OP, first of all i would like to thank you for your time for doing this.
    just a quick question, how can i change from tenant in common to joint tenant? i didnt realise how this could affect the distribution of the WIL, i wanted to make sure if i die all my estate goes to my partner.

    can this be done simply by contacting the land registry or fill in some form? or solicitor needs to be involve in the process?

    • HighAndDry on 15/03/2019 - 14:02

      You can do most things without a lawyer - but even if you can, if you don't know the process, you'll need a lawyer because no one is about to walk you through the process of it for free online. (No one you should trust anyway).

    • mr_vino89 on 16/03/2019 - 09:31

      Hi Ishe, sorry for the late.
      Each state has their own way to deal with it.
      In qld yes, you can contact the titles office and ask them how to do it. There is a form on the titles website you can download to request the change.
      You will need to also fill out and stamp duty forms to submit to the office of state revenue to claim the stamp duty exemption.

  • st1ngynoob on 15/03/2019 - 12:00

    Hi, I don't have any family here and don't have a will. What happens to my money on the bank, will my family be able to get it, once I pass away?

    • mr_vino89 on 17/03/2019 - 18:54

      sorry the late reply.
      If you don't have a Will but your family is aware you have assets here (even though they live elsewhere), they are still entitled to receive those assets from your estate pursuant to the rules of intestacy (which are essentially laws that deal with situations when you don't have a will and how your estate is to be distributed. The rules of intestacy may or may not work in your favour depending on your circumstances.

  • geoffs87 on 15/03/2019 - 13:40

    Just got married, need a will. Can my wife and i see the same lawyer to get wills done, or does it need to be seperate?

    • mr_vino89 on 17/03/2019 - 18:54

      Yes, you both can see the same lawyer - it's quite common.

  • kreagh on 15/03/2019 - 15:16

    Hi Mr Vino_89,
    If a deceased estate is bankrupt (owes a debt to a creditor with no assets left in the estate), is it necessary for the executor to apply for bankruptcy for the estate? If the executor doesn't apply for bankruptcy, what happens?

    • mr_vino89 on 17/03/2019 - 18:58
      +1

      Not always necessary to apply for bankruptcy depending on the size of the debt etc. If the amounts are not significant some credits tend to forgive the debt and write off the debt but some creditors are abit more forceful.
      If the executor doesn't apply, then the creditor may apply instead. I understand its a similar process to normal bankruptcy.

      • kreagh on 17/03/2019 - 21:38

        Thank you for your response Mr Vino - it really helped! :)

  • Ultramup on 15/03/2019 - 16:49

    Thanks for the AMA, I’ve a simple question.

    Can a divorced ex partner living separately for the past 10 years contest a will or even make a claim if he/she died intestate.

    • mr_vino89 on 17/03/2019 - 19:05

      In Qld, generally not - only the deceased's spouse, children (including stepchildren) and dependents can make a claim. I'm not sure about the other states though but I would have thought they take a similar view.

  • Shiny Mew on 15/03/2019 - 18:59

    I'm a first-year lawyer earning $49k p.a. and working 55 hours a week in Melbourne's CBD in private practice. Not bad for 7 years of G08 education and three CV pages of relevant work and volunteering. Am I being underpaid?

    • canyoudoitcheaper on 15/03/2019 - 19:14

      Sounds like you’re in a small/ boutique firm

      $49k is on the low to average side for a grad lawyer. I would’ve expected more since you are in in a CBD firm.

      Isn’t a double law degree 5 years- how did you end up doing 7?

      • Shiny Mew on 15/03/2019 - 20:19

        Boutique. I commenced my double degree when it was a 5.5 year course, underloaded two years (to three units a semester) and took half a year off to work. It just hurt when my close friend at an upper-mid tier confirmed he was on 72k p.a (as a grad, not 0-1PAE) and rarely works past 6.30pm. I feel a bit exploited, being on less than minimum wage.

        • Ti-au on 16/03/2019 - 21:56

          Welcome to the wonderful world of law :/

          I'm not sure why you even have a professional soc….
          obviously not doing much in regards to allow grads to work below minimum wage…

        • mr_vino89 on 17/03/2019 - 19:15
          +1

          Yea I felt the same way as well when I first started. most of my friends were on better paying jobs then I was. Just remember - there will always be people who get paid more or less than you. Don't compare what you have to them otherwise you'll always be disappointed. just focus on what you have in front of you and aim for what you want :)
          Hang in there for a year or 2, then look for a new job once you've got that valuable experience up your sleeve.

    • mr_vino89 on 17/03/2019 - 19:12
      +1

      Sorry for the late reply. If you work is a small/boutique firm, unfortunately that's quite normal. I was in your shoes a few years ago but was paid like $40k before tax or something lol I had to keep my casual retail job for a year working on the weekends to make up for it.
      The hours were long (12 hour days)and had to work half day Saturday as mandatory. I just sucked it and kept reminding myself though that I'm in it for the for real life work experience. After 2 years for good experience, I managed to get a much better job with much better pay, and haven't looked back since.
      My advice - do the hard yards now and it'll pay off down the track. all the best :)

      • Shiny Mew on 18/03/2019 - 19:10

        Thanks for your reply. It does give me hope, though with commercial electrical apprentices in their early 20s making nearly $100k with much better hours, I do wonder whether I should cut my losses at this point (being down about $500k by now due to not having pursued a trade), since I'm not sure the hours will ever be less than 50 a week or the stress less than that of being a painter (sole proprietor painters can make bank).

      • Shiny Mew on 18/03/2019 - 19:18

        Is it realistic to expect that with good networking and hard work that I might be able to make the jump to mid-tier or government after just my first year? I expect the hours and, to a large extent, my effective hourly wage would be the same or better, generally speaking.

  • Yorkshire-Man on 16/03/2019 - 06:56

    Thanks for your AMA.

    We are Sydney based and need to do a will. We don’t know anyone in this field, can you tell me where to start & what it should cost ?

    Thank you !

    • Ti-au on 16/03/2019 - 21:57

      Terry Waugh is popular on another forum & is in NSW……

    • mr_vino89 on 17/03/2019 - 19:17

      There's a firm I use in Mona Vale NSW when I've got client's who need estate work done in NSW, E&A Lawyers. Their area of expertise in Wills and Estate. You'll have to call them to get a quote, but I do recommend their services :)

      • Ti-au on 18/03/2019 - 23:22

        Fred Edgington married Alfonso's mother? E&A.

        Lucky or they would of had to get rid of the A, when Pat left.

  • MrNice on 16/03/2019 - 08:59

    Hello,

    My family has three brothers and our father, we all placed a equal share into an investment over 23 years ago. Only one of us were on the name as the registered owner (older brother) of the property and we had a solicitor write up a document which states that each of us hold an equal share in the property "beneficiaries".

    Now the greedy bastard wants to take the lot as he says he is the registered owner. We placed a caveat on it. I'm worried we will lose our share in the property. How do we go with this? Also my father is old and may die in a couple of years as his 90.

    What are our chances of winning the court case? The bastard changed the lock years ago without authorisation and has 3 wild dog to guard it a he lives in the house with his wife and family.

    • mr_vino89 on 17/03/2019 - 19:26
      +1

      Caveat is a good start - make sure you double check if its a lapsing or non-lapsing caveat so you know your time frames for bringing an action against him.
      I can't comment on your prospects of success as I haven't seen your documents and know your full circumstances.
      But even if you are not the registered owner of the property, you may all still have an 'equity interest" in the property which entitles you to receive your share of the sale proceeds if he decides to sell it.
      If he and his family are living them, you can demand that he pay rental for an equal to the share of the property he doesn't own.
      Best try to sell the house. If he doesn't agree to sell, you can apply for a court ordered sale which would force him to do so.
      I highly recommend that you see a lawyer to discuss your options.

      • MrNice on 23/03/2019 - 11:23

        Thank you for your response, my question is that is it easy to request a court ordered sale? Or will it be a lengthy court battle and me putting me in a place where I spend a lot of money.

        This is what feedback I got from emailing a solicitor.

        He emailed me this:

        The rules governing my profession do not allow me to enter into agreements to “take a cut” from the property, so I cannot agree to such an arrangement. In certain circumstances, I do engage in work of a “speculative” or “conditional” nature, where we operate on a “no-win, no-fee” basis and charge an uplift on professional fees at a maximum of 25%. As a general rule, I do not agree to such arrangements before being paid to review the matter and give advice as to prospects of success.

        As to the prospects of success, I cannot say at this stage. My “gut feeling” is that there may be a claim with reasonable prospects of success, however I cannot say anything beyond that because I have not been given complete instructions nor considered the matter in detail. This matter is somewhat complicated because (a) the property owners were not all registered on title as tenants in common; (b) the existence of a trust deed [and we do not know where in the chronology of events the deed was prepared]; (c) we have not sighted the caveat; (d) it doesn’t appear that a property search has been conducted since 2008, so we do not know what the current status of the property is nor if there are e.g. any mortgages on title or even if the caveat is still registered. To summarise, I cannot tell you what the outcome of the case will be.

        Presuming that our advice is that there is a reasonable claim, the costs of producing a basic letter would be included in the sum quoted – but a more detailed letter or any further correspondence required would not be included.

        In relation to the sum of $15,000 – if this matter was to require court proceedings (if it could not be resolved before the commencement of proceedings), then the costs would far exceed $15,000. I do note, however, that if successful your Father may be entitled to recover some of his legal costs (either from the property or from the other parties).

        The way it is said, I feel like I'm not sure the prospects are high.

        What I can say is the caveat is current and has not lapsed.

  • 1Kenobi on 16/03/2019 - 09:38

    What is the way to exclude or minimise a biological child’s share of an estate via the will?
    Can a step child successfully challenge a will if excluded ie not mentioned in the will ?
    Can a step grandchild challenge a step grandmothers will where the bulk of the estate came from their deceased biological grand father?

    • Ti-au on 16/03/2019 - 21:58

      1) Its difficult and beyond the remit of this forum (get legal advice, etc)
      2) yes.
      3) it depends.

    • mr_vino89 on 17/03/2019 - 19:53
      +1
      1. You can exclude biological children but they are entitled to make a claim against the estate if they think they have been unfairly left out or have not received enough. Best to have a separate document like a "statement of wishes" or statutory declaration explaining why you have left them out. this will give the executors guidance as to why you left him/her out.
      2. In Qld, stepchildren can make claims against the estate. Not sure what the other state's rules are like. However, for Industry Supers, generally step children can't make claims unless they are considered dependents (i.e. they financially depended on you up to the date of your death). Super takes the view that step children aren't your children anymore upon your death.
      3. Unless they were financially dependent on step grandma up to the date of her death, it would be difficult for them to make a claim.
      4. seek independent legal advice about your circumstances :)
      • 1Kenobi on 17/03/2019 - 20:19

        Thanks

  • Sxio on 16/03/2019 - 15:58

    Ok I've got a question. My Dad's in significant debt. When he passes away, I'm assuming the bank is going to take all of his estate to settle his debts. Does the bank sell the house, or do I get to go in, sell everything off, renovate so we can make a better profit, sell the house and THEN pay the bank?

    Also, what if there's still money owing after all of his assets are sold?

    Thanks.

    • mr_vino89 on 17/03/2019 - 20:03

      Depends on what assets or property is secured against the debt. If there is a mortgage over the property and your dad is in default of the loan, the bank has the right to exercise the power of sale to sell the home.
      Once you notify the bank of his death, some banks tend to give you some time to administer the estate and and sort things out. you can use this time to renovate the home and sell the property.
      the executor's role is to ensure that all debts are paid off before making any distributions of the estate assets to the beneficiaries.

      If there is still money owing, the creditor may decide to either write off the debt or make an application against the estate for bankruptcy.

      • Sxio on 18/03/2019 - 08:41

        It's all against the property. He had a mortgage, then a 2nd mortgage, then a reverse mortgage which I believe he has done again. He is very, very bad with his money. I don't think there will be anything left after the bank gets their share back.

        I guess my major concern is that I'll be left holding the pot. I'm ok with the bank taking everything, those were his choices to make, but I don't want to be liable myself? I'm the executor of the will, it's just my and my sister.

        PS - thanks for your time. I appreciate it.

        • mr_vino89 on 18/03/2019 - 09:18

          If he does not have any other assets of significant value in the estate then the bank can only get back what they can from the sale proceeds of the house.
          Unless you incorrectly administer the estate (i.e. transfer assets to beneficiaries without paying of the debts first etc), you are unlikely to be personally liable for the estate dates.
          Reverse mortgages usually don't require immediate repayment(s) until the asset is sold.
          However upon his death, if you can keep the house from being sold by the bank and sell it by way of a private sale first, you may be able to get more from the sale of the home if you sell it yourself. Banks often just auction of the property which may be below what you are asking for.

          • Sxio on 19/03/2019 - 11:21

            @mr_vino89: Awesome. That's what i was hoping to hear. Thanks again!

  • apu on 16/03/2019 - 23:46

    How many years out are you and how much do you make?

    • mr_vino89 on 17/03/2019 - 20:05

      ive been doing this for about 5 years or so. I don't make that much to be honest but I'm financially secure lol ;)

  • bargainsniper69 on 17/03/2019 - 10:26

    Can you be an both the executor and beneficiary at the same time at 16?

    • mr_vino89 on 17/03/2019 - 20:06
      +1

      You can't be an executor until your 18 years old.

  • [Deactivated] on 25/03/2019 - 21:29

    If the deceased left his estate to his 2 children but that it turns out that one of them isn't his. What happens?

    • ihbh on 28/03/2019 - 08:24

      but that it turns out that one of them isn't his

      Would he still care in his grave?

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