Nestled in the tropical paradise of Far North Queensland, Cairns boasts not only stunning landscapes and vibrant culture but also a growing need for careful estate planning. While many residents may associate estate planning with the elderly or affluent, the truth is that everyone, regardless of age or financial status, can benefit from a well-thought-out estate plan. In this blog post, we’ll explore the unique considerations of estate planning in Cairns and why it should be a priority for individuals and families across the region.
Table of Contents The Tropical Haven and Its Unique Demands: Estate Planning in Cairns Cairns, with its lush rainforests, pristine beaches, and the Great Barrier Reef at its doorstep, attracts residents from various walks of life. The unique environment and lifestyle here present specific considerations when it comes to estate planning. From managing property investments to preserving family legacies in a region susceptible to natural disasters, the need for a comprehensive estate plan in Cairns is paramount. Protecting Property Investments: Real estate is a significant aspect of life in Cairns, whether it be a family home, a vacation property, or an investment portfolio. Estate planning allows individuals to safeguard their real estate assets, ensuring a smooth transition of ownership and minimising potential disputes among heirs. Proper planning can also address concerns related to property management, maintenance, and any potential tax implications, offering peace of mind to property owners and their families. Preserving Family Legacies: Cairns is not just a place; it’s a lifestyle, often passed down through generations. Family businesses, cultural traditions, and personal legacies are deeply intertwined with the region’s identity. Estate planning provides a structured framework for preserving and passing on these unique legacies. Whether it involves a family-owned business in the tourism sector or the continuation of cultural practices, a well-crafted estate plan ensures that these elements are protected and transferred seamlessly to the next generation. Navigating Unique Environmental Risks: While Cairns’ tropical climate is a major draw for residents and tourists alike, it also exposes the region to environmental risks such as cyclones and flooding. Estate planning can help individuals prepare for unforeseen circumstances by incorporating strategies to protect assets from potential damage. This may include insurance considerations, contingency plans, and the designation of responsible parties to manage assets in times of crisis. Addressing Diverse Family Structures: Estate Planning in Cairns Cairns is a melting pot of cultures and lifestyles, leading to diverse family structures. Blended families, same-sex couples, and individuals with non-traditional familial arrangements require estate plans tailored to their specific needs. Through careful consideration and legal guidance, estate planning ensures that the intentions of individuals are respected and executed, regardless of the family structure. Mitigating Tax Implications: Estate planning is not only about asset distribution but also about minimising the tax burden on heirs. In Cairns, where property values can be significant, understanding and managing potential tax implications is crucial. Through strategic planning, individuals can take advantage of available tax exemptions and deductions, ultimately preserving more of their estate for their loved ones. In the heart of Far North Queensland, Cairns offers a unique blend of natural beauty, cultural richness, and economic opportunities. As residents cherish their connection to this tropical haven, estate planning emerges as a fundamental step in securing their legacy and ensuring the well-being of future generations. Whether safeguarding property investments, preserving family traditions, or navigating the challenges of a diverse family structure, estate planning in Cairns is an essential tool for every individual. By seeking professional guidance and taking proactive steps, residents can embrace the future with confidence, knowing that their legacy is protected against the tides of time and the unpredictable nature of the tropical paradise they call home. Need legal help Contact James Noble Law to arrange a free 20 Minute Consultation to discuss your individual Estate Planning needs. Find us on Google Maps: Expert Family Lawyers in Brisbane. Devoted Family Lawyers in Cairns. Skilful Family Lawyers in Milton on Google Maps. You may also like to know more information about the
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For a will to be valid and binding in Australia, the testator (the person making the Will) must have testamentary capacity at the time the Will was created.
Testamentary capacity occurs when the testator is of sound mind and must understand:
Background of Testamentary Capacity In the situation mentioned above, the young boy (known as “N”) required emergency surgery on his lungs with a high chance he would not survive the procedure. N did not have the testamentary capacity to make a valid will to provide for the distribution of his estate. For a regular 13-year-old child this would be a non-issue, as an individual of that age has usually not accumulated anything to distribute. Inheritance from previous next of kin death However, N’s estate was worth millions of dollars as a result of an inheritance received from a previous next of kin death. Furthermore, as N’s parents were separated, it was unsure whether the Father or Mother would receive the estate. The issue was brought before the NSW Supreme Court to determine whether a Will could be made on N’s behalf, and if so, what this Will would involve. The Succession Act The relevant legislation outlined in both New South Wales and Queensland provides the Court with the ability to create a Will on behalf of a person who does not have testamentary capacity. Therefore, the Court was able to make a Will on behalf of N. Ultimately, the Court determined N’s estate should be split three ways, with 42.5% going to the Mother (having cared for the child alone for many years), 15% to the father and the remaining 42.5% to be split equally amongst the fellow siblings. Although this is categorically a “rare” case, it is a perfect example of the extensive powers granted to the Court under the Succession Act. Fast advice for your situation We’ve just about seen it all at James Noble Law when it comes to Wills and Estate issues and can help to sort through the details in your situation quickly and effortlessly. To speak with a family lawyer with a great depth of experience in Brisbane Wills and estate planning including testamentary capacity then speak to a family lawyer with James Noble Law today. If you need any help, contact the team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
HELP! I’ve Got An Executor Dispute: Can I Remove an executor of a will? It is not uncommon for clients to raise they are frustrated with how the executor of a will is administrating a deceased person’s estate. These complaints typically arise from beneficiaries to a Will, being the category of person who benefits under the will. Before dealing with these issues, it is necessary to understand the nature of the executor of will, their position, and the responsibilities this position demands. An individual referred to as the “testator” is the person who writes the will, or has someone draft a will on their behalf. During the creation of this will, the testator will generally (not always) appoint a person as “executor”. In the event the testator passes away, it is the executor’s responsibility and duty to administer the estate or allocate the money and assets an executor of the estate to the proper persons. If the testator is alive, changing which person or persons are executors is quite simple, involving a simple amendment to the will. However, if the testator is deceased, it becomes difficult to remove the named executor of a will. Reasons to Remove Executors of Will There are several reasons to remove an executor of a will. However, the court will only remove an executor of a will if it can be reasonably established or shown that the executor is incapable of performing the necessary duties the position demands, is unsuitable for the position, or has become disqualified since their appointment. An executor’s paramount duty is to administer the deceased’s executor of estate honorably and in good faith. The Court will typically consider the following circumstances as grounds to remove an executor:
What Can Beneficiaries Do to Remove an Executor? If the situation warrants that the executors is removed from their position, an application can be made to the Supreme Court of Queensland seeking an order that the executor is removed and replaced by another person. However, due to the timely nature involved in court proceedings, and the reluctance of the Court to interfere in the deceased person’s estates, there is a large time period where an executors may remedy their actions. Rather than instigating Court proceedings, it may be a more viable option to draft a letter to the executor of will which sets out your position and what actions need to be taken. Watch this video. If you need more info about Update on family law courts in QLD during COVID 19 To seek clarity with your Will, speak with an experienced family lawyer to Book an appointment or email at [email protected] For more information, contact the brisbane family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
What is a Mutual Wills?
Mutual wills are considered a ‘legally binding contract’ between two people that are drafted in terms agreed upon by both parties and cannot be revoked or amended by either party without the agreement of the other. This means that following the death of the first party, the wills are irrevocable and changes can never be made by the surviving party (unless otherwise provided for). Most commonly, mutual wills are used in circumstances where parties have remarried with children from a former marriage. This is because mutual wills require parties to agree on the beneficiaries, and a surviving spouse cannot disinherit their step-children. In saying this, mutual wills may be made between any two people wishing to combine their estate plan. What are the advantages of Mutual Wills?
What are the disadvantages of Mutual Wills?
Can Mutual Wills be subjected to Family Provision Claims? Importantly, creating a mutual will does not prevent people from bringing a Family Provision Claim against the estate. This became known in the High Court of Australia decision in the matter of Barnes v Barnes. It was decided the deceased’s adopted daughter was entitled to make a family provision claim, despite the existence of a valid Mutual Will which expressly passed property of the estate to their son. Clearly, mutual wills are complex and should not be created without an understanding of the agreement. They should be carefully drafted including considerations of the following:
Are you still wanting to make a Mutual Will? If you still feel as if a mutual will is suitable to your circumstances, the experienced Brisbane family lawyers team at James Noble Law is here to assist. Contact us on 1800 662 535 or make an enquiry to arrange a free and no-obligation consultation. No-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
For more information, please visit the main article source: Mutual Will Binding Financial Agreements & Will drafting essentialsWill drafting is an important skill to possess as a junior solicitor. Unfortunately, you don’t always get the opportunity to refine your drafting skills in university which makes the leap into real-life practise particularly daunting.
The key question here is; what components are necessary to appropriately prepare wills as a junior solicitor? After all, a negligence claim down the line could carry dire consequences for you and your principal, especially at the outset of your career. Making a formal will It is imperative that solicitors aim to draft a formal will. A formal will comprises the following:
While solicitors are at liberty to bind wills as they see fit, it is widely accepted that wills should be placed on a cardboard back-sheet with a plastic front cover, affixed together with an eyelet. It is critical that a paperclip is never used to affix a will, as they can leave a mark which may only be discovered when it is too late to rectify. Accurately recording client instructions During the Covid-19 pandemic, the use of video technology became an unprecedented “norm”. However, it is important that client instructions for will drafting be obtained in-person whenever possible. In doing so, solicitors can be confident that the client is being seen alone without any undue pressure or coercion. In circumstances where instructions can only be obtained via video technology, the client should be asked to prove that no one else is present in the room. Junior solicitors can use pre-prepared instruction sheets whilst obtaining instructions from the client. Lexon instruction sheets are widely used throughout the profession in Queensland and they guide users to obtain details such as, the identity of the client and their partner (if any), details of all children (if any), details of the intended executor(s) and beneficiaries, the situation of all assets and liabilities, details of will instructions and a checklist for capacity. This instruction sheet is easily accessible through the LEAP practice management software and others. Recording accurate instructions will protect junior solicitors from missing important information, which reduces the possibility of having to rectify the will in the future. Files relating to the drafting of wills should be retained for a period of seven years after the grant of probate. Powers Executors should always be granted wide-ranging powers. In addition to executor powers, the following should be included in all wills:
In circumstances where the will maker anticipates more children, the term ‘my children’ should be used. If the will maker has ex-marital children, it needs to be made clear that only the children of the relationship with a particular person are to be included. Junior solicitors must also consider what will happen if a beneficiary fails to survive the testator. In circumstances where a testator’s child fails to survive the testator, any gifts will usually fall to the child’s child. For all other beneficiaries, it is common for the specific gifts to fall into the residue. Solicitors have a duty to approach this situation delicately with the client, and ensure the matter is dealt with appropriately in the Will. Family disputes Although clients may believe they have the authority to merely exclude someone they don’t like from their Will solicitors need to carefully consider whether that excluded beneficiary is an ‘eligible person’. An eligible person in Queensland must fall within one of these categories:
Nonetheless, solicitors have a responsibility to explain that excluding eligible persons from a will may lead to a lengthy and messy Family Provision Application in the future. Reviewing the will with your client and execution requirements A draft must always be sent to the client prior to signing. On the day of signing, solicitors should again encourage the client to read the Will, paying close attention to the names and addresses. The final step of the process is one of the most important, execution. The Will should be signed by the Testator/Testatrix in blue pen (and copies made in black and white so the original is easily identifiable), with two adult witnesses present at the same time. Beneficiaries should not be involved with witnessing the Will. As a junior solicitor, paying careful attention to these components will develop strong drafting skills and, most importantly, trusting relationships with clients. If you require assistance preparing a will, please contact the experienced Brisbane family lawyers team at James Noble Law to arrange a free and no-obligation consultation. We have Qualified and Experienced Family Lawyers Brisbane at James Noble Law. Find Brisbane family lawyers on Google Maps Near you now. You may like to know more information about the
If you believe that a deceased friend or family member’s Will does not reflect their last wishes or are concerned with the circumstances and nature of an updated will, you may challenge the validity of the Will.
This situation commonly arises where the deceased friend or family member may not have been in the right state of mind to understand what they were doing, or if a fellow family member has manipulated the person’s wishes. To begin the process of contesting a will, you must have an interest in the deceased person’s estate. In other words, you may be someone who is referred to in the Will, or if the person dies without a valid will in place, someone referred to under the laws of intestacy such as a spouse or child of the deceased. Reasons for Contesting A Deceased Estate The most common reasons to begin Contesting A Deceased Estate include:
As Wills are usually made when the deceased person is elderly, the most prominent concern is whether the Will maker had the mental capacity to understand the contents of the Will. In circumstances where the Will maker lacks this capacity, the Will may be set aside by the court. Before an order is made, the Court will consider whether the persons had a severe mental illness (such as Alzheimer’s) or brain disease (such as Dementia) at the time the Will was made. Another reason to challenge a Will is if the Will maker was not aware of the contents of the Will or where they were pressured by someone to leave a particular item (usually property or another valuable asset) to a particular person where they would not usually have done so. If the Court decides this has been the case, the deceased’s previous Will is used. If no previous Will exists, the laws of intestacy will apply. Final Wishes Although a deceased person may not have a “Will” at the time of their passing, if the person wrote a letter setting out their final wishes in an informal document with their signature, the Court has the power to declare that document valid. In certain circumstances, this informal document may even be declared valid despite an earlier formal Will. If you want to know more about Contesting A Deceased Estate and if this document could be useful for your particular situation, contact the team of Family Lawyers Brisbane at James Noble Law. If you need any help, please contact the team at James Noble Law for a FREE 20-minute consultation today to schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to learn more about:
It is very important that your Will is always current and up to date. Why? If the Coronavirus Pandemic has taught us anything, it’s that the future is unknown and preparation is key.
So, why should you update your Wills? There are a number of reasons why this important task should be a priority for you.
As can be seen from the above items, family law, in particular, is closely linked to Wills and Estates. To update your Will or to discuss your family situation, please contact the team at James Noble Law and book an appointment today. We have Qualified and Experienced Wills and Estates Lawyers at James Noble Law. Find Brisbane family lawyers on Google Maps Near you now. You may like to know more information about the
When a person creates a Last Will and Testament, they are required to appoint a will executor or Will Administrator who acts to administer the person’s estate upon their death. Although many ask:
How To Be an Executor of a Will or Will Administrator of an Estate? A will executor or Will Administrator is responsible for ensuring that all outstanding debts and taxes are paid to creditors/debts, and, all remaining assets are distributed according to the deceased person’s final wishes provided for in the Will. As this position requires a high level of trust and accuracy, the will executor must act with great care and integrity when fulfilling the role. If you have been named as a will executor to an estate, it is vital to put the interests of the estate and any beneficiaries (persons who will receive any assets) of the estate above anything else. It is important to mediate any conflicts which arise during this process, as the will executor cannot be biased and take the side of one beneficiary over another. The best way to avoid or minimize conflict is to maintain clear and regular communication with all beneficiaries about what is happening with the estate. Situations Involving Numerous Executors / Will Administrator of an Estate Where there is more than one will executor to the estate, you are required to consult with the other and agree on a proposed course of action before any steps can be made to administer the estate. As a will executor, all liabilities of the estate must be accounted for and all assets must be properly managed and protected until they can be distributed to the respective beneficiary. How To Be an Executor of a Will / Will Administrator of an Estate The process to become an Executor of a Will or Will Administrator may include:
ALSO READ: How To Avoid Problems Drafting a Will It is critical to understand that any error in administering the estate (whether deliberate or accidental) may result in you being held personally responsible for any financial losses of the estate. Therefore, the above-mentioned duties must be adhered to. If you require assistance with the administration of an estate, seek legal advice to ensure this process is properly performed. NEED HELP?Find some best Brisbane family lawyers on Google Maps TALK TO A NOBLE FAMILY LAWYER 1800 662 535 Article Source: Executor Of A Will The lawyers at James Noble Law have been drafting and advising regarding succession, Wills, and Estate Planning law for over 30 years. We can help you with all of your wills and estate planning needs. Our professional financial and accounting partners can help you plan for your future and for your families.
Need assistance planning your Will? We have the legal and financial expertise to get you the fairest possible outcome. Remove hassle and risk with James Noble Law. Once You Have Secured A Financial Base It Is Critical To Ensure You Are Protected For Now And The Years To Come. This Can Only Be Obtained Under The Guidance And Assurance Of A Quality Will. Article Source: Wills and Estate Planning Are you thinking about doing getting a DIY Will Kit?
DIY will Kit: The letters “DIY” seem to apply to just about everything these days, and one area of ‘do it yourself that is growing in popularity is the DIY will kit. It’s advisable that we all have some type of will (no matter what), and with the internet making everything so accessible in the modern world, DIY will kit seems to be all the rage. Is a DIY Will Kit Worth It? But is a will kit worthwhile? Is there really any benefit in preparing your own will? Many want to craft their own will to save money going through legal channels, and it can be a good way to learn how a will works and what you might want to put in your will, but at the end of the day, you are far better off having your will drafted up by an experienced lawyer. Here’s why. One of the biggest problems with creating your own will with a DIY will kit is the strong possibility of the will being misinterpreted. This leaves the will wide open to being challenged and could possibly negate any benefits the will was meant to provide in the first place. Often a self-prepared will in testament can be executed by a close and trusted friend or family member. This is also not a good idea on a number of levels. For starters, there could very likely be a conflict of interest if the executor is included in the will. Also, that person who has found themselves bestowed with this new responsibility most likely won’t have the knowledge or experience to effectively execute the will. Can You Make A DIY Will Kit Work? A will really need to be prepared and executed by a legal representative who knows exactly what can be included in the will, and has the expertise to execute the will fairly and legitimately when the time arrives. This is a very important document and really not a DIY kind of situation. Talk to a wills and estates family law expert about drafting your will and acting on your behalf. If you are in the Brisbane area, the team to call is James Noble Law. Article Source: DIY Will Kit |
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