Lockett McCullough Lawyers is now a proud participant of the Cancer Council Queensland’s Free Will Service for Queensland.  As proud supporters of the Cancer Council Queensland, our solicitors in our Toowong, Albany Creek and Noosa offices are prepared to help you with your estate planning needs.

Free Will Service

In order to be eligible to use our Free Will Service, you will need to include a bequest in your Will to Cancer Council Queensland and we will prepare a basis Will for you free of charge.

If your Will is likely to be complex, we may still be able to help – simply talk to us about what you require, and we will advise you of any likely costs for detailed provisions you may need.

Cancer Council Work

Cancer Council Queensland works tirelessly to improve the quality of life for people living with cancer, through research, patient care, prevention and early detection including:

• Research
  Cancer Council Queensland through their Cancer Research Grants, funds and conducts world-class research focusing on increasing survival and enhancing the quality of life.
• Patient care
  Cancer Council Queensland provides both practical and emotional support for people affected by cancer including their 13 11 20 information and support line, Peer Support Programs, Wig and Turban Service, Accommodation Lodges and Transport Services.
• Prevention
  Cancer Council Queensland empowers communities to reduce their cancer risk through initiatives such as the National SunSmart Program and Tackling Tobacco Queensland.

Please take a moment to look at the Cancer Council Queensland’s publication – Your Guide to Leaving a Gift in Your Will – when considering your gift to the Cancer Council Queensland.

Make an Appointment Today

To arrange your Free Will by our experienced estate planning solicitors please call any of our Lockett McCullough Lawyers offices directly at

• Toowong on 07 3870 8244
• Albany Creek on 07 3264 7692
• Noosa on 07 5449 7500

Our friendly staff will make an appointment with one of our experienced Estate Planning lawyers.

You can also make an appointment for any of our offices using the online form on our website.

Alternatively, feel free to contact the Cancer Council on 07 3634 5257, and they will assist you with your enquiries.

Thank you for considering this opportunity to make a difference to the lives of people who are affected – directly or indirectly – by one of the many forms of cancer.  We are excited to hear from you and assist with your estate planning needs.

A personal guarantee is a promise to pay a debt that is owed by somebody else. Usually a personal guarantee is only called upon if the person who owes the money does not pay it when it falls due.

There are many circumstances under which a personal guarantee may be given. A few of the common scenarios are:

1. When a company is obtaining finance or entering into a lease, a personal guarantee is required (usually the director of the company) to secure payment of the amount owed by the company;
2. Similarly, where a family trust is obtaining or a lease, and the trustee of that trust is a company or an individual, a personal guarantee is required (usually the director of the company);
3. When parents or other relatives are guarantors of a loan given to their children by a bank. In the event that the children default on the repayments, the parents (as guarantors) will become personally liable to pay the amount owed.

Parents & Grandparents Being Guarantors

It is extremely common for parents and grandparents to give personal guarantees for their children’s or even their grandchildren’s debts – usually when purchasing their first properties. Sometimes it is in the form of a loan, or the guarantor allows the financier to encumber their own property.

Despite being a generous gesture, personal guarantees can be a serious and risky commitment especially when they are given by a guarantor who is later in life.

For example, in one case a personal guarantee was given to a financier by a 76 year old father for his 47 year old son’s $820,000 debt associated with a hydroponic herb farm that went bust.

Of course, if you have multiple children and provide financial benefit to some and not others while you are alive, the tension that creates in your family is obvious.

Separately from the prudence of giving a guarantee, however, there is another issue that can arise, namely – what happens to the personal guarantee you gave when you were alive, when you die?

The Effect of Death

A personal guarantee will usually last as long as the associated debt is outstanding. If you die while the personal guarantee is still alive (ie the amount is still outstanding), what does that mean for your estate?

Usually, subject to the terms of the guarantee document, the guarantee does not die with your death. Instead, your estate continues to be liable under your personal guarantee, which can have some unwanted consequences, such as:

1. Your estate cannot be finalised and completely distributed until the personal guarantee ends ie when the related debt is paid. This could take years
2. If the debtor defaults in paying the debt, your estate will be called upon under the guarantee to meet the debt. In most guarantee documents, the guarantor is not only liable for the “guaranteed amount” but also interest, enforcement and legal costs associated with enforcing the guarantee. This means your estate could be heavily depleted of funds resulting in less being left for the benefit of your beneficiaries.
3. If the guarantee was given for the benefit of one of your children, the other children who are beneficiaries of your estate will not be pleased if the guarantee is called upon and as a consequence, they lose some or all of their entitlements as explained above.

What to do?

So how can you try and make sure that your personal guarantee does not cause unnecessary grief for your executors and beneficiaries? Here are a few things to consider:

1. When giving the guarantee in the first place, don’t encumber your own property too heavily or stretch your guarantee too far. Think about the worst scenario – if the debtor did default, what would you comfortably be able to pay back?
2. Similarly, just because you could afford to give a larger guarantee at the time, doesn’t mean that you should.
3. Do nothing and leave the guarantee in place and hope that it won’t ever be called upon by the financier.
4. Communicate with the debtors, constantly re-evaluate the amount of the guarantee and reduce it where possible. For example, if you have given a guarantee to a family member to assist with the purchase of their first home, enquire as to whether the property has gone up in value, or if they have paid any lump sums off the debt. If so, they will likely be able to approach their bank to reduce the amount of your guarantee.
5. Get legal advice about the effect of your death on the terms of your particular personal guarantee and how you might adjust your Will to take into account the possibility of the guarantee being a burdon on your estate
6. Explore the possibility of getting personal guarantee insurance to protect you or your estate if the guarantee is called upon.

Ultimately, the best solution is not to give personal guarantees. However, the desire to assist family and friends is often strong and if you are fortunate enough to be in a financial position to give a personal guarantee, it is usually with pride and pleasure that you would be giving one. If it assists your children to get ahead in life and you can afford to do so, then why not?!

If you do want to proceed with giving a personal guarantee, at least obtain some good advice beforehand to assess what you can do to reduce the potential impact on you and your estate. Otherwise, you won’t be leaving generous benefits to your beneficiaries but, rather, a burdon which make take years to relieve.

If are considering giving a personal guarantee and would like some advice, please contact our experienced Wills and Estates solicitors – (07) 3870 8244 (Toowong) and (07) 3264 7692 (Albany Creek).

Do you have investments both in Australia and overseas?

It is becoming increasingly more common for individuals and small to medium structures to invest internationally, whether it be in real property or in business. Similarly, we are seeing a rise in the number of clients who have moved from overseas to Australia and have assets in both jurisdictions and want to make sure that their Wills provide for both their Australian and foreign assets.

Given the rise in international investments, it becomes a relevant consideration as to how these assets are treated in your estate planning and more importantly, how these assets are to be disposed of once you pass away. The questions that often arise are: “Will my Australian Will be valid in a foreign country?”, “Will my overseas Will be valid in Australia” or “Do I need a Will in both countries?”.

For most of our clients who have asked this question of us, our answer has been, in most cases, “it depends on the law of that foreign country”. This means that when preparing your Will and considering the overseas assets you own, it is best practice to obtain advice from a lawyer who is familiar with the succession laws of that foreign country. After all, in Australia alone, we have different succession laws for each separate state (albeit they are all very similar).

As a general rule of thumb, we encourage clients to have Wills in both countries, in the event that one country does not accept the Will of the other country when it comes time to obtain a Grant of Probate for your estate. Whilst our Queensland Courts accept Wills and a Grant of Probate from most countries (including New Zealand), other countries may not be as accepting of your Australian Wills when dealing with your assets in that country.

The main points to consider are:

1. What type of document can create a valid Will in the foreign country?

2. What are the witnessing requirements when executing your Will?

3. What are the probate laws in relation to administering your Estate (for example, are original Wills required or are copies fine, who is responsible for administering your Estate, costs involved, is Probate necessary etc);

4. If you do decide to have a Will in both countries, are the Wills consistent with each other? If not, this could cause further difficulty and expense when you pass away.

There are also tax and duty issues that you should consider when preparing your succession plan for your overseas assets. For example, the United Kingdom imposes “inheritance taxes”, where in Australia the only implication may be for stamp duty (when transferring properties) and Capital Gains Tax.

Takeaway points: think about what assets you own in Australia and overseas, review your Will if you already have one, and talk to a lawyer who is familiar with the laws of the foreign country. It may be the case where you will need to prepare a separate Will for your assets in that foreign country to ensure that your overseas assets can be dealt with upon your passing.

Lockett McCullough Lawyers regularly obtains re-seals for Grants of Probate from other countries, so we are well placed to assist with recommendations regarding your international Wills. Please don’t hesitate to contact either of our offices if you require individual advice about your Wills and estate planning or if a loved one has passed away with an overseas Will but has assets in Australia and you need assistance – (07) 3870 8244 (Toowong) or (07) 3264 7692 (Albany Creek),

If you are in you twenties or thirties then you fall into the category of “Gen Y” as it is commonly known. You are probably young, healthy, tech savvy and the topic of ‘estate planning’ is probably not on the top of your to-do list.

Maybe it is, but you have just put it in the “too hard” or the “I will get to it later” basket.

It is a common misconception amongst millennials and Generation Y-ers that they do not need an estate plan because:

“I’m not going anywhere anytime soon”
“I don’t own anything”
“My parents will just look after everything for me”

Here are our top five reasons why Gen Y-ers should consider their estate planning now and not only once they become older:

1. Even though you may only be in the early stages of your career, you have still accrued superannuation – so where will it go after you die?

Your superannuation is separate to your Will and therefore does not automatically form part of your estate when you pass away.

Every superfund is different as to how they deal with your superannuation.

Some will allow you to make a Binding Death Benefit Nomination, others will allow you to make a nomination that is non-binding, others will not allow you to make a nomination at all and others will pay directly to your Estate.

It is important that you check with your super fund to ensure that you have made a Binding Death Benefit Nomination. If you do not nominate anyone, the trustee of your superannuation fund has the discretion to decide who your death benefits are paid to.

2. You are not invincible  – so who is going to pay your bills, sign documents on your behalf, take care of you financially, legally, medically and personally if an accident happens and you lose capacity to do these things for yourself?

An Enduring Power of Attorney (EPOA) enables you to appoint someone (such as your parents, partner or close friend) as your attorney and that person will be responsible to look after your finances and/or health and personal matters should you lose capacity.

It is a common misconception that EPOAs are only for older people who may develop Alzheimer’s or dementia, however you never know when an accident may happen which causes you to lose capacity at a younger age.

If you do not have an EPOA in place and you lose capacity to make decisions for yourself, your family may have to apply to the State to become your legal guardian, which can be time consuming and costly.

3. Your digital estate – who will take control of social media accounts and passwords?

Mot Gen Y-ers have one or more of the following online platforms: Facebook, LinkedIn, Twitter, Instagram, YouTube, Pinterest, email, debit cards and online membership subscriptions.

It is important that someone you know and trust is able to locate these accounts and details if they need to manage your affairs if you become incapacitated. You might not have acquired property, saved up a large sum of cash or have an investment portfolio, but have you ever considered the what will happen to your ‘digital estate’?

This is an often overlooked aspect of estate planning particularly relevant for Gen-Ys and comprises things like email, followers on social media, email subscriptions and accounts (eg. iTunes library), and copyrights in photos, videos and music you have created, downloaded or purchased online.

If you pass away and the appropriate steps have not been implemented before hand, then access to and use of the potential digital asset following your death may be lost.

4. You may not have a house, or children, or significant assets, but what about your pet?

It is becoming increasingly more common for clients to instruct us to provide for their pets in their Wills. This is because pets become part of the family and to some people, pets are like their children.

There are different clauses that can be used to provide for pets, the most common being who the pet is to be given to when you pass away and trust structures for the care and maintenance of pets with back-up guardians.

Whatever you desire, you should discuss this with the family member or friend you wish to look after your pet to ensure they are willing to take on this responsibility.

5. It’s Not Permanent, so you can update as your situation changes

Just because you are young and we are encouraging you to have your estate planning documents in place does not mean that they are permanent or any decisions that you make are final.

In fact, we encourage clients to review or amend their estate plans every few years, to account for changes in the law, or a change in the client’s circumstances (ie, marriage, divorce, children, a change in their financial situation).

On some occasions, we will draft Wills for clients as a “stop gap” type measure. For example, where a separation has occurred and one of the parties changes their Will, in anticipation of divorce. Similarly, clients may make their Wills in anticipation of marriage.

Even if you don’t want to make any amendments to your Will, we still recommend that you at least review your estate planning documents every five years, as a minimum.

Conclusion

Ultimately, having a Will, Enduring Power of Attorney and valid Binding Death Benefit nominations in place does not have to be expensive, time consuming or complicated.

However, it can be expensive, time consuming and complicated for the people you leave behind if you don’t have estate planning documents in place.

Our Wills and EPOAs are prepared for a low fixed fee, and discounts apply if you and your spouse/partner requires a Will and EPOA that are substantially the same.

We also offer clients the option to complete a Will Instructions form so that we can take their instructions electronically and draft their documents without them having to attend our office.

If you require a Will or Enduring Power of Attorney, please contact us on 3870 8244 (Toowong office) or 3264 7692 (Albany Creek) and we would be happy to assist.

What is a Will?

A Will is a legal document that sets out your wishes as to how your estate is to be distributed once you have passed away.
Who needs a Will?

Everyone over 18 who has capacity to make a Will, should make one. It does not matter how large or small your Estate may be or how old you are, it’s important to have a valid Will. A court can approve a Will being made for someone who cannot legally make a Will themselves, for example, for a wealthy child.

To be valid, a Will must be in writing, dated, signed by the person making the Will (the testator) in front of 2 witnesses.

Witnesses must be over 18, cannot be visually impaired and should not be beneficiaries of the will. They need not be qualified (ie a solicitor, Justice of the Peace or ComDec).

What happens if you die without a Will?

When you die without a Will, you are said to have died “intestate”. The Succession Act (Qld) sets out the rules (“intestacy laws”) as to how the estate of someone who has died intestate is to be distributed. These intestacy rules include, but are not limited to:

• If you have a spouse (including de facto) and no children, your spouse gets the whole of the estate; or

• If you have a spouse and a child, your spouse receives $150,000 plus household chattels plus ½ of the balance (or 1/3 if more than one child).

Dying intestate may have unwanted consequences such as:

• Having to sell the family home in order to distribute your estate;

• You can not provide for your pets or appoint a carer for them;

• An estranged family member benefiting from your estate when you do not want them to;

• Your Estate may not be distributed to your beneficiaries in the proportions that you may have wanted;

• You may be placing an extra burden on family members during a time of stress, grief and loss;

• Potential for conflict between the beneficiaries of your Estate, particularly amongst members of a blended family;

• It may be more costly and take longer to administer your estate.

Why get a solicitor to draw up your Will?

A Will is a legal document, and as such, if the Will is unclear, improperly worded or incorrectly signed or witnessed, then it may be invalid and your wishes completely disregarded.

A properly drafted and executed Will gives you a number of options in how your estate is administered and distributed, for example, you can:

• choose your own executor/s (that is, the people who will administer your estate once you’ve passed away);

• give gifts to specific people or to a charity. These gifts include small items such as photos and large items. As long as you own something, you may gift it in your Will);

• appoint guardians for your children and also leave funds for the guardians to use for your children’s expenses, such as health, medical or education expenses, as well as everyday living expenses;

• set up a trust to ensure that your assets are used or invested for the best interests of the beneficiaries;

• make provisions and care arrangements for your beloved pets;

• express specific wishes in relation to burial, cremation or organ donation arrangements

• make arrangements for the succession and continuation of your business, or sale of the business.

When should you update your Will?

You should change your Will if: you get married, divorced or separate from your partner, enter into a defacto relationship, you have children or grandchildren, your executor or beneficiary dies, there is a change in your financial circumstances or your wishes change, retirement, a natural disaster

Contact us

Lockett McCullough Lawyers has extensive experience in drafting Wills that clearly set out your wishes and give you peace of mind. We will offer you advice and experience in drafting your Will and also assist your Executors once you have passed away. We also offer a Safe Custody service to our clients where we will hold your Will and/or Enduring Power of Attorney securely. This avoids any uncertainty over the location and content of your Will.

For more information about our Wills and Estates services or to arrange an appointment to discuss your Will, please contact us.

A common question we are asked by clients who are making a Will is: “what happens if we die at the same time?” or “what happens if we die in the same accident?”. This can refer to the simultaneous death of spouses or business partners or even beneficiaries.

The order in which married couples die is an important consideration, particularly in cases of blended families where one spouse’s Will may not mirror that of the other.

The simple answer to this question is that the Will of the first to die takes first effect.

Depending on what the Will of the first to die says, their estate may pass to the second to die or may bypass the spouse and go to children or step-children.

Whilst the order of death will not be relevant where the Wills mirror each other’s, the order of death will be particularly relevant if the Wills of couples are not identical. The order of death may create an injustice because the parties may have anticipated that the younger person would survive the older person and have made Wills accordingly.

In some cases it may be possible to determine the order of the deaths if one or more were alive when found or hospitalised before they passed away. However, determining which person passed away first will be more complicated where both parties passed simultaneously.

In the situation where both parties died simultaneously in an accident or were found deceased together then the legislation deems that the oldest person died first. This has obvious effects on how the Wills of the individuals are treated as well as any business succession agreements are interpreted. This needs to be taken into consideration when succession planning, rather than simply assuming that the older spouse/partner will pass away first.

One of the ways to overcome this sort of difficulty is to provide in Wills that for example, “I leave everything to my Wife if she survives me by 30 days”. This is known as a “Titanic clause”. Generally, if people are going to die from an accident they will do so within that short period of time. That avoids the confusion that might arise through simultaneous or uncertain order of death and also avoids the need to pass everything from one estate to the estate of another person who has already died.

If you have any questions in relation to succession planning upon simultaneous deaths or need to update your Will to allow for this situation, please contact us on 3870 8244 to discuss your succession planning needs.

A common question we are asked by clients is why they can’t “just do their own” Will using will kits from the newsagency to record their wishes and avoid paying legal fees.

While will kits can be sufficient if your testamentary wishes are very basic, it is important to be aware of the many risks and things that can go wrong which will increase the expenses incurred by your estate if you do not receive proper legal advice.

Below we look at the top 10 estate planning mistakes which have been made by clients who have not obtained legal advice on their estate planning and have done their own Wills:

1. Typos

It may seem like an easy thing to avoid in a legal document, but you would be surprised how many Wills contain spelling mistakes or grammatical errors. Having either of these in your Will can cause specific gifts to beneficiaries to fail or can change the meaning of your Will altogether;

For example, if you have left 70% of your estate to Beneficiary A, 20% to Beneficiary B and 20% (instead of 10%) to Beneficiary C, this will not add up to 100% and could cause angst amongst the beneficiaries, particularly in a large estate.

2. Not understanding Executor Duties

When choosing an executor/s for your estate, you need to have a good understanding of the role and responsibilities of the Executor of your Will. Selecting an unsuitable person to administer your estate can cost your estate in the long term if mistakes are made.

For example, if your Executor automatically assumes that they will need to apply for Probate (where it may not be necessary) can result in your estate having to pay costly advertising fees and Supreme Court filing fees unnecessarily.

It is also common for people to nominate executors who reside overseas. Whilst it is possible to have a relative or friend who lives overseas act as the executor of your estate, you must consider – is it really practical?

3. Not considering marriage or separation or updating your Will when you should

If you are about to marry or have just separated, it is imperative that your Will contains a clause stating that your Will is make in anticipation of marriage or divorce, as these events can revoke your will in part or in its entirety.

It is also important to update your Will once you have married, divorced or your circumstances have changed. For example, if you have children, if your executors or beneficiaries have passed away, if you receive an inheritance or large lump sum etc.

4. Not minimising the risk of a claim to your Estate

If you have excluded a child, dependent or other family member, it is not sufficient to just not include them in your Will. You need to specifically exclude them to best protect your estate against a claim being made on your estate. This is called a Family Provision Application (i.e. someone contesting your Will for further and better provision).

A Do-It-Yourself will kit will not accommodate for this exclusion, but a further statutory declaration drafted by your solicitor will. Further, if your will is disputed in the future, it is beneficial for your executor to have your solicitor’s file notes to rely on as to your intentions at the time your Will was made.

5. Not correctly providing for what will happen if one of your beneficiaries die

If you are leaving your estate to your children in equal shares, what happens if one of them predecease you? Would you want their share of your estate to go to their children (your grandchildren) or to your other surviving children? Most people don’t think that far in advance, but it is an important consideration once grandchildren are born or if you don’t update your will regularly.

The same goes for any of your beneficiaries – if they predecease you, have you stated who you would like to receive that beneficiary’s share in your estate instead?

6. Not getting correct taxation advice

Depending on your level of wealth, it is prudent to liaise with your accountant to ensure that the affect of the wishes stated in your Will are tax effective for your beneficiaries. Otherwise, you could risk a large portion of your estate being lost through tax.

For example, if your superannuation goes to an adult child it could be taxed at the top marginal rate.

Also, would it be worth considering whether you should be establishing a testamentary trust/s in your Will. This is something that needs to be discussed with a solicitor and is far too complex to be dealt with in a Do-It-Yourself will kit.

7. Not providing an age for minors to inherit

If you are providing for a minor child in your Will, it is important to consider and nominate a certain age at which you wish for them to inherit. If you forget to provide an age for minors to inherit, the consequences, generally, are that the child can inherit their share of your estate immediately. This is not ideal for very young children or immature teenagers.

It is also important if you have children, to ensure that you nominate a guardian to care for them and even a back-up guardian in the event that your first guardian is unable or unwilling to be the guardian.

8. Not correctly executing or witnessing your Will

The Succession Act Qld sets out the requirements for a valid Will, including execution and witnessing requirements. Your execution of your Will must be witnessed by two independent witnesses (not your executor, beneficiary or family member) and it must be signed on the bottom of each page by both yourself and each witness. The witnesses do not need to witness your Will at the same time, or know what they are signing, but they must be independent.

9. Not providing your superannuation fund with a binding death nomination

There is a common misconception that superannuation forms part of your Will. However, this is not the case. Superannuation is separate to your estate and it is left to the discretion of the trustee of your superannuation fund to determine who is to receive your superannuation.

Every superannuation fund is different in terms of how you are able to nominate a beneficiary. If your superannuation fund allows you the option to make a binding death benefit nomination, you not only need to ensure that you provide your fund with your nomination, but also that you keep renewing it every 3 years to ensure that it remains binding.

10. Not having an Enduring Power of Attorney

An Enduring Power of Attorney (EPOA) is an important legal document as it allows you to nominate an attorney to act on your behalf and manage your affairs in the event that you are living, but lose the capacity to make decisions for yourself (for example, being in a coma). You can nominate an attorney/ies for financial and personal/health matters.

Not having an EPOA in place means that your loved ones will have difficulty undertaking small tasks for you, such as paying bills, buying medication, contacting authorities on your behalf etc.

Having an Enduring Power of Attorney whilst you are alive, is just as important as having a Will in place for when you pass away, but often they are forgotten about and more focus is placed on having a Will.

For more information on these common estate planning mistakes or if you would like some estate planning advice, please contact us and we would be happy to assist you.