Kirkby & Associates Lawyers

1 Eden Park Drive, Macquarie Park, NSW, 2113, Australia

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02 9874 3800

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Kirkby and Associates Lawyers are specialists in the area of Conveyancing and Wills and Estates.

We can assist you with environmental law concerns, the buying and selling of businesses, the leasing and purchasing of commercial premises, employment agreements, partnership agreements and other commercial documents.

Our reputation in providing outstanding legal services on all matters probate sets us apart. The granting of probate is the first step in the legal process of administering a deceased persons estate, resolving any claims and property distribution of the deceased person’s property under a will.

We provide independent, friendly and caring legal services.

We’ll accommodate appointment requests outside the normal business hours, which can include home, hospital and nursing home visits, free of any additional charges.

Please visit our Conveyancing website, www.callconveyancingsydney.com.au for more information.

First Consultation Free

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G02, 1 Eden Park Drive
Macquarie Park NSW 2113

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https://www.linkedin.com/company-beta/7689798/

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Related Posts

A pet legacy for peace of mind what do i do

It has become increasingly acknowledged that there are enormous benefits to pet ownership, especially for the elderly or those living on their own. Pets help to reduce stress, lower blood pressure, increase physical activity and social interaction. However, pet ownership also comes with a myriad of responsibilities and as an elderly owner’s health and their ability to care for themselves declines many become concerned about what might happen to their pet when they die.

A Pet Legacy

To alleviate such concerns there are a few different options that can be considered as part of the estate planning process. These can include:

  1. Organising for a family member or friend to commit to taking over their care which may include leaving some financial assistance to them in a will.
  2. Setting up a Pet Trust which will require a trustee to administer for the life of the pet. This also needs to be established legally as part of estate planning.
  3. Registering the pet in one of a few pet legacy programmes run by animal organisations such as the RSPCA or Animal Welfare League.  Enrolling a pet into such a programme can alleviate any concerns for a pet’s future as the organisation undertakes to take over the care of the pet or find a foster or permanent home for them when the time arises.  Again this needs to be part of an estate plan.

Animal Welfare Organisation Pet Legacies

Even if a friend or family member has indicated they will take care of a pet, sometimes changes or other circumstances arise and this might not work, in which case having a formal arrangement set up with an animal welfare organisation can act as a kind of ‘insurance policy’ and they will be ready to take the pet into care as soon as is necessary.

Generally, it is beloved companion pets such as dogs and cats that become part of such programmes but arrangements can be made for other pets too.  These types of Pet Legacy arrangements are easy to set up through Coordinators who provide all the information, guides and documents necessary and once a pet is registered the owner will be supplied with ongoing documents including a wallet card with the information and who to contact when required.

“My decision to register my much loved cat Bondi as part of a pet legacy programme has given me so much peace of mind,”

Seventy-five-year-old Geoff said when he found out about this as an option and put it into action.

Very detailed information about the pet will be gathered to make sure their individual needs can be met when they are taken into care.  Charitable animal organisations that offer these programmes also provide other vital services in the community and rely heavily on community donations.  Most would not survive without gifts from wills, so even though they don’t charge for the pet legacy programme the organisation will ask participants to leave them a gift in their will.

This (and the amount to be gifted) can be set out in a few ways:

  1. A percentage gift. You simply state in the will what percentage of the estate you wish to leave.
  2. A residual gift. After everything else in an estate has been taken care of, including any costs, you simply state that the remainder of the estate or a percentage of it can be provided as a gift
  3. A specific gift. You can gift a specified amount.

Even the smallest donation can make a difference, so even if an estate is not large, just gifting anything can be used by the organisation in essential community work.  A solicitor or the Coordinators of pet legacy programmes can help with the best and most precise wording of gifts like these in a will as it is important that executors or guardians are provided with clear instructions as to the wishes of an owner about their pet’s future.

For more information about registering a pet in one of these pet legacy programmes it is best to contact either the RSPCA or Animal Welfare League in your particular state. In NSW the RSPCA programme is called Home Ever After.

A pet legacy for peace of mind what do i do

Why you should start your Estate PLanning what do i do?

It’s time to address your Estate planning

‘Estate Planning’, it’s something that we put off.  Perhaps because we don’t feel like we have an ‘estate‘ or perhaps our ‘estate’ is too complex.  Some have lodged a will 20 years ago, the majority of us still haven’t ever got around to it.

The truth is, we find it daunting.  We think of it as confusing, complicated and expensive.  So we put it in the too-hard box.

With the CoronaVirus forcing us into mandatory self-distancing, there has never been a better time to get started.  Especially for those of us that are thinking about our own mortality of late.  End-of-life care is mandatory to start planning for and the earlier you start thinking about it, the better.

Why is it important to have end-of-life documents in place?

Because you could be leaving an expensive, time-consuming, emotionally draining, legally complex mine-field for your dear loved ones.  We’ve seen some of the

Let’s have a look at some of the things you should be considering as part of your end-of-life planning.

Powers of Attorney

In New South Wales a Power of Attorney is known as an Enduring Guardian. This covers the appointment of another person to make personal decisions or financial decisions (or both) on your behalf, in the event you no longer have the capacity to do so.

The appointed person you nominate is known as an “attorney”, and you can choose when their role as your “attorney” is to start.  For example, when the document is signed, or when you cease to have decision-making capacity, or on a particular date that you nominate.  It’s very important to nominate a Power of Attorney, even if you have full capacity now, as it will allow you to specify in detail the types of decisions you would like another person to make for you in the event of unforeseen circumstances.  Note you can appoint different Attorneys for financial and personal matters – you know your contacts, some are going to be great at the financial stuff, but possibly they are not going to know enough about your personal needs in relation to health and personal care!

Advance Health Directive

In contrast to the Power of Attorney / Enduring Guardian, there are Advance Care Directives.  The requirements do vary from state to state in Australia, but essentially it is about your future health care.  It should ideally be a constantly changing document that outlines what you would want or not want in the event that you were unable to make or communicate your own preferences in relation to your health care.

For example, if you had a type of cancer, at what point would you want to discontinue treatment?   At what point is the quality of life compromised for you? When on a life support machine, when would you want a DNR (Do Not Resuscitate) to be put in place?

The Advance Care Directive would not appoint someone to make decisions for you, it would merely state your wishes or direction for any health care you might receive for various conditions in the future.

For more information about the various state laws surrounding Advance Care Directives in your area, you will find forms, supporting information, guides, fact sheets and checklists.

Wills

We’ve all heard the horror stories about people dying ‘intestate‘ or without a Will.  But the sad fact is, that not a lot of us have a will in place!

Keeping an effective Will that reflects your true wishes is such an important duty you owe to those important to you.  Not only will it ensure your loved ones are appropriately provided for, but it will avoid any disputes arising in the event that you pass away.

As your life is constantly evolving, a will should be reviewed every 2-3 years to ensure that it reflects your intention – your wishes and your inclusions (any assets which may have changed over the time period).  It’s generally best to have an entirely new document prepared.

An executor will need to be appointed.  An executor will be the person that you nominate who deals with your estate or assets and will administer your Will.  You can nominate a professional executor (such as your accountant or your lawyer), or a close friend or family member.  It just comes down to selecting someone you can trust and will take the task at hand in a mature and methodical fashion.  If you elect to have a professional person administer your estate, you’ll need to include a clause to make payment to this executor at the time of administration.

Does your will consider things like:-

  • What happens if you remarry?
  • Do you have allocations for step-children?
  • What happens if your children marry?
  • Have you appointed a guardian for your children if they are under 18 years old?
  • Allocation of specific gifts of property, shares or cash
  • Do you want to divide your estate equally or in unequal shares?
  • Have you made your funeral wishes clear?
  • Do you need to create a trust to protect your childs inheritance until they turn 18 or 25?

Mirror Wills

For couples, a ‘Mirror Will’ maybe something to consider.  If you are married or in a defacto relationship, a will can essentially be mirrored if they say the same thing.  For example, if they leave everything to each other and then upon the death of both, the estate needs to pass to their children (if they have any).

Testamentary Trusts

Such a trust is formed to provide a greater level of control over the distribution of assets to your beneficiaries.  It begins after the Will maker dies, with certain provisions of the Will operating as the trust deed.  A key benefit of holding assets on trust is it attracts a lower tax rate (depending on the circumstances).

There are two main types of testamentary trusts commonly used:

Discretionary

Where the executor gives the beneficiary the option to take their inheritance (or part of the inheritance) via a testamentary trust.

Protective

Where the beneficiary must take their inheritance via the trust, and doesn’t have the option to appoint or remove trustees (unlike in a discretionary testamentary trust).  This type is better in situations where the beneficiary may be too young, or not capable of making informed decisions!

Death Benefit Agreements and Death Benefit Nominations

Superannuation Funds are not factored into your ‘estate’ when you pass away.  So it is very important that you check your super documentation and make sure that you have nominated your beneficiaries.

If there is no Agreement or Nomination in place, the surviving trustees are able to distribute the monies at their discretion.  This may not be what you had intended, as they may simply distribute it to themselves!

You should update the Agreements and Nominations regularly.  In fact, in some cases a binding Death Benefit Nomination may actually expire after 3 years if it is not confirmed.

A Death Benefit Nomination can be either binding or non-binding on the trustees who need to allocate the relevant amounts to be paid on your death.  It will also expire after 3 years (unless you confirm it); a Death Benefit Agreement, however,  is binding and remains permanent until a member revokes or replaces the agreement.

OK, I’m convinced, what do I do?

Fill in the contact form below and we can send you some recommendations based on your situation.  Alternatively, peruse our directory or Tools and Resources for further information.

Why you should start your Estate PLanning what do i do?

Lost capacity court applications what to do

The New South Wales Succession Act (“the Succession Act”) and associated regulations allows for an application to be made to the Court for protection of a person who has lost testamentary capacity. An order can only be made if the person who has lost capacity is alive at the time the order is made by the Court.

Under the Succession Act an application can be made to the Court for an order authorising:

  1. A Will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity; or
  2. A Will or part of a Will be revoked on behalf of the person who lacks testamentary capacity.

The Court Application

In order to make the application a person must first apply to the Court for leave to make the application.

The application for leave must include the following information:

  1. A statement about the nature of the application and the reasons why the application is being made;
  2. Evidence of the lack of testamentary capacity of the person for whom the order is sought;
  3. Estimates of the size and character of the Estate of the person for whom the order is sought;
  4. A draft of the proposed Will or revocation that the applicant wants to be approved by the Court;
  5. Evidence of the person’s wishes including any previous Wills made by them;
  6. Evidence of the likelihood of the person acquiring or regaining testamentary capacity;
  7. Evidence of any person who would be entitled to benefit if the person died without a Will (i.e. died intestate).
  8. Evidence of any person who might reasonably be expected to be included in the Will; and
  9. Evidence of any charitable gift that the person might reasonably be expected to make in their Will.

It is apparent from the above list of requirements that a large amount of evidence is required to be put before the Court before they will even consider granting leave to make an application for an order.

This is why you need to seek expert legal advice from a Wills and Estates lawyer if you wish to apply to the Court for an order.  As the proceedings are heard in the Supreme Court this requires a lawyer with knowledge and proficiency in this jurisdiction who is aware of the procedural and legislative requirements to obtain a successful order.

The Court hearing of the application for leave

Once the application for leave has been made the Court will hear the application, grant leave to make the application and make the orders sought if it is satisfied on the following matters:

  1. There is reason to believe that the person is, or is reasonably likely to be, incapable of making a Will; and
  2. It is appropriate for the order to be made; and
  3. The proposed Will, alteration or revocation is one that would have been likely to have been made by the person if they had testamentary capacity; and
  4. Adequate steps have been taken to allow all persons with a legitimate interest in the application to be represented in the proceedings.

Our expert Wills and Estates lawyers have the experience you need to apply to the Court for protection of a person who has lost testamentary capacity.

At Heckenberg Lawyers we don’t take our clients’ confidence for granted: we work hard to earn it by providing an efficient, cost-effective service which puts your interests first and doesn’t cut corners. We take pride in achieving repeat custom and winning clients by word of mouth recommendation.

If you need advice about a Will or an Estate matter please call 02 9221 2779 or email info@hecken.com.au to arrange an initial consultation with principal lawyer Graeme Heckenberg at our centrally located Sydney offices.

See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.