Narellan

I have been left out of a Will! - Can I make a claim?

When a person dies, it is often a troubling time. When a person finds out they have been left out of a Will it can increase the stress, particularly if that news comes as a surprise. There are two main things to consider if you have been left out, if you are considering what your legal rights are: are you an eligible person and, if so, what are your needs to be provided for?

Who is an eligible person?

A spouse or a child of the deceased are considered to be eligible persons. There is a third category that defines any person who was in a relationship of financial dependence with the deceased to be eligible. We are waiting for a few decisions to be made giving us examples of what types of people may fall into this category. But until it is thought that some types of carers who are paid in kind (perhaps with free food or board) for their assistance and grandchildren who receive financial support from the deceased. But it is still a fairly untested category.

What kind of needs does the Court consider?

When making a claim you will need to provide solid evidence of your financial circumstances: what assets you own, how much super you have, your income, your debts and any future needs (such as medical and education expenses). If you have a spouse, the same information will be required from them too. Then your position will be compared to those named in the Will (the beneficiaries). If you are in substantially worse of position, the Court may order that some of the estate is given to you. The Court will also consider your relationship with the deceased, any of your conduct that may be relevant to why you were left out in the first place and of course, the wishes of the deceased. After all, the fact they choose to disinherit you will not be ignored by the Court.

It is very important to know that you only have 12 months from the date of the deceased’s death to file your Summons, commencing your claim. Although it is possible to commence an action after 12 months has passed, you need to convince the Court that they give you their permission to start your claim.

Because of the strict time requirements imposed by the Court, if you have been left out of a Will you should legal advice as soon as possible with our experienced estate litigation solicitors.

A note to those people who have a Will already or are considering making a Will that will leave someone out. It is very important that you meet with an experienced Will practitioner to discuss your particular circumstances and what can be done to protect your estate against silly claims.

Coutts can help you with your Will or advise you of your rights if you have been left out of a Will. Contact Coutts Solicitors & Conveyancers today.

Can I sell my home to a buyer with 5% deposit?

If you have your house on the market, you are selling at a time where  property prices and mortgages are high, buyers will need to offer a deposit to purchase, but the current market conditions mean it is uncommon that a buyer will have a 10% deposit. However, the Contract for Sale of Land stipulates that a 10% deposit must be paid on exchange of Contracts. So this leads many people to question " Can I sell my house to a buyer with a 5% deposit? " and if so, how is this done? and is there any risk? The simple answer is yes you can and yes it does come with a risk, but there are ways to minimise the risk.

You can accept any deposit you wish under the Contract for Sale as long as it is agreed to by all parties, but here is the catch…

  • If you agree to accept a 5% deposit and if you ever had to terminate the Contract on your buyer, then you would have to try and recover the balance of the 5% due to you under the Contract. This would be done through litigation (going to court), which is an expensive process with no guaranteed outcome.
  • If you do not feel comfortable agreeing to a 5% cash deposit, you can always ask your buyer to obtain a 10% deposit bond. A Deposit Bond acts as a substitute for the cash deposit between signing a Contract and settlement of a property. At settlement the purchaser would then pay the full purchase price including the deposit. A Deposit Bond can be issued for all or part of the deposit amount required, up to 10% of the purchase price.

Thus, it is safer to ask for a 5% cash deposit together with a 5% deposit bond, which would total your whole 10% deposit.

Ideally, it is up to you whether you agree to accept a 5% deposit, just remember that it does come at a risk. Even though you are lead to believe it is “common practice” you are entitled to the 10% deposit under the Contract for Sale, you do not need to accept the 5% even if there is a “special condition in the Contract” as if you do accept the lesser deposit,  that is most likely all you will get if the Contract is terminated.

If you are thinking of selling your property you will need a contract of sale before you market your property. This can be done by a licensed conveyancer. Contact Coutts Solicitors & Conveyancers.

6 steps to recover financially from a Separation or Divorce

In Australia today around 1 in 3 marriages can be expected to end in divorce. With 77% of Australian couples also living together before getting married (and let’s face it - some don’t go the distance) the real impact of  relationship breakdowns is likely to be much higher than the statistics lead us to believe. 

There is no doubt moving on from any long term relationship, be it marriage or de facto, can attract a heavy emotional toll. But the financial impact can also be far reaching and long lasting.

Finances are often left on the back burner as you focus on the emotional health of yourself and your family. Perhaps it is the fi rst time you have had sole responsibility for your finances? Or maybe you feel overwhelmed and don’t know where to start?

The key is to take action early. Here are some steps to get back on track financially after a separation or divorce…

1. Check your credit rating

A vital first step is taking control of your financial future! Check to see if your credit report contains any errors or if any of your partner’s information is listed. If so, have it rectified. There are two main credit reporting agencies - Veda and Dun & Bradstreet

2. Identify your creditors

Make a list of all your creditors, both secured and unsecured. Your secured creditors are those where assets are used as security for the loan, eg house or car. Negotiation of both the assets and the outstanding loans will be required by both parties.

3. Separate all joint accounts

A time consuming but crucial step is to unravel all your joint accounts, including credit cards. Even if the separation is amicable it is best to separate all accounts to avoid future issues.

4. Create a budget

An unavoidable result of separation is a change in lifestyle. An important step in making this adjustment is creating a comprehensive budget separating discretionary and mandatory expenses. To stick to your new budget you may need to make tough decisions on discretionary spending. Of course, if you have children then child support may also come into the equation – one party may be paying child support while the other receives it. Remember that child support payments will cease or may be amended at some point in time. This should be factored into future planning for both parties.

5. Decide on your housing options

In most cases the family home is either sold or refinanced. At least one partner will need to find somewhere new to live. While renting may be a viable short term option, in the long term most people wish to buy a home. You will need expert advice on how to best refinance your home or secure a loan for a new home. If refinancing or applying for a new loan it is important that all required identity documentation reflects your new marital status and/or any change of name.

It is essential you contact your mortgage broker to discuss the process BEFORE lodging any loan application documents.

6. Prepare a Financial plan for the future

• Start an emergency fund - open a separate savings account for unexpected emergencies. • Update your Will – ensure it reflects the changes that have occurred in your life. • Manage your debt - contact us for a chat about how to reduce your ‘bad’ debt like credit cards and personal loans as quickly as possible. • Plan for your retirement - review superannuation and update beneficiary details if required. • Review your insurance needs - you will need to update policies from married to single status.

This is a guest blog written by Andrew Evans from Mortgage Guy. If you would like to discuss getting your finances on track after a separation or divorce click here to contact Mortgage Guy . If you are thinking of separating from your partner and would like information from the Coutts Solicitors Family Law team click here to contact Coutts Solicitors.

I am an Executor of a Will - What do I do?

If you are an Executor of a Will you may be thinking 'What do I do?". Being an Executor is an important job. Many consider it to be an honour to assist with the carrying out of a person’s final wishes. However, for others it is a stressful time- they fear family conflict bubbling up to the surface, find the probate process a nightmare of court rules procedures and don’t have the time to sort through the paper and work out what the person owned. The first task an executor needs to do, is to locate the original Will (if someone has passed away without a will, read this article- What happens when a person dies without a Will?). Some people store these at home, but many have their original Will with their solicitor or, less common now days, in a bank deposit box. Solicitors have ways to communicate quickly with other solicitors to determine where the original Will is. You also need to obtain the original death certificate before you can apply for Probate

Probate is the process that describes the Supreme Court verifying the validity of the Will and then granting the power to the executor to start administering the estate. Once probate is granted, an executor can start a process of “calling in the assets”, such as removing funds and closing bank accounts, selling property and share and the like. Before probate is granted an executor is personally liable for any errors, so it is vital an executor wait until probate is granted.

We are experts in locating Wills, assets, bank accounts and property. We are well experienced in the probate process as well as distributing the estate the beneficiaries (that is, people named in the Will as receiving an inheritance). We can also advise you on superannuation issues, advise if you need to file a tax return (on behalf of the deceased person or the estate), help you manage any claims made against the estate and make sure you follow the Will’s intentions and the law in dealing with the estate.

If you are an Executor of a Will see Coutts Solicitors & Conveyancers for your Probate matter. Call 1300 268 887 or click here for a call back.

What happens if a person dies without a Will in NSW?

What happens if a person dies without a Will in NSW? If a person dies without a Will it is up to a family member or a friend to apply to the Supreme Court for Letters of Administration. The process is very similar to obtaining a grant of Probate on a Will, but there are a few more steps involved. When someone leaves a Will, they are entitled to leave their items to whomever they please. However, in the absence of a Will, a person’s property is distributed in accordance with the law. It will automatically pass to a person’s spouse, then any children, then parents and so on and so on. Things can become complicated very quickly where there is more than one “spouse”. Because the definition of spouse is fairly flexible, it is possible for someone to have separated from their husband or wife without being divorced and living in a de facto relationship and then there are two potential spouses to deal with. Things can also become complicated where there have been deaths, divorces and remarriages or other events that have changed people’s surnames- generally where this has happened, the Court requires original birth, deaths and marriages certificates. So the paperwork required can become pretty expensive, pretty quickly. All applications for Letters of Administration would be filed within 6 months of the person passing away. Sometimes a person has left document that is meant to be a Will but it has issues, such as it is not signed by the deceased, or it was signed by the deceased but not witnessed, or, not clear what the person wanted. Another situation can arise where a valid Will has been made but the executor or executors named have all since passed away. In these cases Letters of Administration is still applied for but these documents are attached.

If someone has passed away and they only owed joint property, for example a joint bank account and they owned a house as a joint tenant, then it’s probably not necessary to apply for Letters of Administration. However, you still need to transfer the property into the survivor’s sole name to ensure the title deed is updated.

Coutts Solicitors and Conveyancers are skilled at preparing the necessary affidavits, detailing how it is known there isn’t a Will and the thorough searches for the Will that have been undertaken and applying for Letters of Administration. We can provide advice about which family members will be inheriting and undertake all of the communication, as well as explaining to other disgruntled people why they might be missing out.

If you are next of Kin to someone who has died without a Will, contact Coutts Solicitors for expert advice on 1300 268 887.

If you are an Executor of a Will and want to know what to do, read this article - I am an Executor... what do I do?

Do you provide goods on credit, consignment or under a lease? Is your interest in those goods protected in the event of bankruptcy or insolvency?

You can protect your secured property by registering your interest on the Australian Government’s Personal Property Security Register (the PPSA). If you don’t register your interest and the business holding those goods is placed into receivership (or an individual declared bankrupt), you may find yourself treated as an unsecured creditor, uncertain whether you will ever see your money or goods again.

Before 2009, if a business or individual loaned money, leased goods or provided goods on credit or consignment they could register their security and protect that interest with ASIC or a variety of registers that existed in various states. Now, there is one register, the PPSA. The PPSA records the registration of an interest in personal goods, such as cars, boats, caravans, machinery, shares, crops and livestock. It does not include real estate. An interest in real estate is (still) registered by lodging a caveat with Land and Property Information (formerly, the Land Titles Office).

For the past few years ASIC has encouraged anyone with a registered interest to move that registration onto the PPSA. From 30 January 2014 other registers will no longer operate.

Armed with a registered security interest, you are treated as a secured creditor and will be given priority over unsecured creditors by the receivers.

You can no longer rely on a retention clause or some other contractual agreement to protect your goods.

For example ABC Office Supplies enters into a lease agreement with XYZ Accounting services for 2 computers. XYZ Accounting does not make any repayments and subsequently goes into receivership. If ABC secured their interest in those computers on the PPSR the receiver should pay to ABC money from the sale of those computers. If ABC did not register its interest, it will be an unsecured creditor and might not receive anything, even if there is loan agreement between ABC and XYZ containing a clause stating the title in the computers does not pass to XYZ until ABC has received payment in full for the computers.

But I registered my interest on the ASIC register, is that still ok?

No. The PPSA replaces older registers, such as the ASIC Register of Company charges and “REVS” (Register of Encumbered Vehicles). From 30 January 2014, any interest registered elsewhere will be invalid. If you have a registered interest you need to immediately move it to the PPSA. Coutts can attend to this quickly on your behalf.

How do I register on the PPSA?

In order to register, you must submit a form to the PSSA registry, setting out the parties to the transaction and must describe the collateral and the security sufficiently. Any items that have a serial number should have that serial number included and any other relevant information that would identify your security. Make it easy for the receiver to identify the property you claim an interest in.

I have loaned money to a 3rd party for them to buy personal property- do I have an interest in the property and should I register it?

Yes. Where money is advanced to buy a specific item, for example a loan to purchase a photocopier, an interest exists and should be registered. However until the item is purchased, there is no security to attach that interest to. The only way to protect an interest during the period between when the loan is advanced and the item purchased, is to have a carefully worded clause in the Loan Agreement. Once an item is purchased, it is essential to register this interest, as the Agreement will no longer be sufficient.

For example, XYZ Accounting borrow money from OK Financing to lease computers from ABC Office Supplies. XYZ Accounting are placed into receivership and ABC and OK both claim an interest in the computers. Big Bank has also claimed an interest in all of XYZ Legal’s goods under a mortgage document executed several years ago.  If OK financing registered their interest before the computers were leased, their claim will fail as there were no goods to “attach” their interest to. If OK registered their interest after the computers were purchased their interest will be protected and will probably out rank the Big Bank’s general claim. ABC Office Supplies will also be treated as a secured creditor provided they registered their interest with the PPSR too.

I regularly buy second hand equipment- can I check the title of these items on the PPSA?

Yes. You can quickly search to see if the item has any registered interests, to ensure you are not buying an item that is actually leased to the seller or has some other restriction that may compromise your title to it.

For more information or to book an appointment with one of our expert solicitors contact us today.

Will you sleep tonight? Without a Will, your assets are at risk.

Thinking about the worst is not something that any of us like to do.  But unfortunately, life doesn't always turn out the way we had planned. Preparing a Will isn't just for those at retirement age. If you have any assets or money at all, you should have a bulletproof Will in place to make sure they are left with the right beneficiaries. In the absence of a Will, your home, savings and more importantly - the financial security of your family is at stake. We've seen it all too often and it’s heartbreaking.

The number of people contesting Wills today is much higher than it used to be, which provides another compelling reason to put your Will in place. Firstly, people are becoming wealthier, so there is more wealth to leave behind.  Secondly, the rising divorce rates are creating complex family structures that aren't as straightforward as they were in the past.

Preparing your Will

If you haven’t yet prepared a Will, consider the following questions:

  • How much is your estate worth and who will be your beneficiaries?
  • Do you wish to include any specific charities?
  • Who will execute your Will after you've gone?
  • Do you need to name legal guardians for children under 18?
  • Do you need to mitigate any inheritance tax liability?

Already have a Will?

If you already have a Will prepared and haven’t looked at it for a while, it might be a good idea to go through it again and make sure you've left no stone unturned. Perhaps your situation and circumstances have changed and you wish to make some adjustments. There’s no better time than today.

Ensuring there are no discrepancies in your Will is not a simple task.  We can work with you to ensure your Will covers all facets of your estate, to reduce the likelihood of any legal dispute. If you need some expert help on preparing or reviewing your Will, don’t hesitate to get in touch.