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Felicio Law Firm

What Happens if You Die Without a Will in New South Wales?

By | Estate Planning

It’s estimated up to 50% of people in NSW either don’t have a will or don’t have a valid will, meaning that should they die unexpectedly, they will be considered intestate and their estates distributed to surviving family members under the rules of the Succession Act 2006 (NSW).

This is not ideal. Most people would like to know that whatever they leave behind after their death – property, shares, heirlooms and other assets – will be distributed to loved ones in accordance with their wishes rather than the provisions of a government act, but this is not possible if they didn’t get around to making a will.

This article provides a basic outline of how an estate is divided in the event of a loved one dying without a valid will.

Who can inherit a deceased’s estate without a will in place?

There is a hierarchy of next-of-kin who stand to inherit a deceased’s estate in the event of intestacy. It begins with a spouse and then, where there is no spouse, the deceased’s children and grandchildren, parents, siblings, grandparents, aunts and uncles, cousins and finally, the state (where a person dies with no living relatives).

Where a person dies with a spouse but no children, the spouse may be entitled to the whole estate of the deceased. If the deceased leaves both a spouse and children behind, and the children are the children of the spouse, it is the spouse who may be entitled to the whole estate. If the children are not the children of the spouse, the spouse may be entitled to: the personal effects of the deceased; a statutory amount, adjusted for CPI plus interest; and one half of any remainder.

In the event that the deceased had multiple spouses, various other considerations will come into play as to how the estate will be distributed and expert legal advice should be sought.

Under the NSW law, a spouse is defined as the person the deceased was married to immediately before their death, or was in a ‘domestic partnership’ with. This latter relationship can include de facto relationships or an interstate relationship that is registered. For de facto relationships, the relationship must have been for a continuous period of two years or resulted in the birth of a child.

It should be noted that if the deceased owned property with someone else as a joint tenant, then that person will inherit the entire property.

What is the process when there is no will?

For an intestate person’s assets to be distributed when they die without a will, someone needs to be appointed as an ‘estate administrator’, who will take on the responsibility of distributing the estate in line with the intestacy rules.

Often the administrator will be a lawyer, a financial planner or someone else trusted by the deceased (where possible), who needs to apply for a grant of administration from the court. This grant will allow them to reconcile matters related to the deceased’s estate – such as any unpaid debts, taxes, funeral expenses, etc – by withdrawing the deceased’s funds, before distributing what remains of the estate.

In simpler cases where the deceased left few assets and has a single spouse to inherit his or her estate, a grant of administration will not always be needed. The same applies if those likely to inherit from the estate can come to agreement on how best to distribute the assets.

Applying for a grant of administration can be time-consuming, involving a lot of paperwork and background research in order for the deceased’s estate to be properly distributed.

For this reason it is recommended to seek the guidance of legal professionals with a background in wills, estates and intestacy, such as the experts at Felicio Law Firm. Call us today on (02) 4365 4249.

conveyancing new south wales

What You Need to Know About the Conveyancing Process in NSW

By | Conveyancing

Conveyancing might seem like one of the less exciting aspects of buying or selling a property but it is a crucial and essential element of the process.

It can also be somewhat of a mysterious exercise, particularly if you’re a first homebuyer. The steps involved in conveyancing – the legal process involved in transferring a property from one person to another – is outlined below.

A smooth transfer is always the desired result, but this requires proper adherence to the process, including filing the correct documentation at the correct times. This process is made much easier when you consult a law firm experienced in conveyancing matters.

Before the contract of sale is signed

Say you’re the seller (or vendor) and have found a buyer for your property. The first step of the conveyancing process is the need to have a draft contract for the sale drawn up by your solicitor. You will also need to fill in and sign a number of legal forms from various government departments and source (or have your legal representative/conveyancer source) certain information to ensure the title deeds are in order; to detail any charges still owing on the property that may affect the sale; to prove the rates and charges are fully paid and up to date; and to detail whether any other restrictions (such as environmental regulations) exist over the property.

Sellers need to be aware this pre-contract stage can take a couple of weeks to complete. Once it is and all other terms such as the price are agreed with the buyer, both parties will need to sign the prepared contracts and proceed to the exchange stage.

Exchanging property

Once this process commences, the contract for sale becomes binding on the buyer and seller. Those managing the process for the seller meet with the representatives of the buyer to confirm the documents are the same and exchange the signed contracts. The contract is now legally enforceable and it is incumbent on both the seller and the buyer to comply with its terms or face certain financial penalties.

While binding, most contracts will also include a five-day cooling-off period (unless purchased at auction or, if the buyer is satisfied with the pre-contract negotiations, waived altogether). In this period the buyer can change their mind and cancel the contract, but by doing so they forfeit 0.25% of the purchase price to the seller.

If after signing the contract the buyer discovers some ‘adverse’ matter which affects the property, such as a new council regulation affecting development options, for example, they may have grounds to exit the contract. To do this the buyer will need to show the seller failed to disclose the adverse matter and also that they were unaware of the matter and would not have signed the contract had they known about it.

From the moment the contract is signed, its settlement will generally occur within six weeks or another period agreed to and set out in the contract. The buyer will also need to pay stamp duty within 90 days of the contract date or prior to settlement (unless a recipient of a first homebuyer’s grant or if buying off the plan).

Settlement

This final stage in the conveyancing process sees the buyer takes possession of the property and all remaining financial matters between the parties are finalised.

Before they take possession of the property, a buyer may conduct a pre-settlement inspection. If the property is to be sold with vacant possession, the seller will need to make arrangements to vacate the premises before settlement. The seller should empty the property of all possessions and leave it in a clean and tidy condition.

If it’s discovered there are any remaining issues regarding the property, settlement can be postponed until the seller addresses them but the contract itself, at this stage, can’t be terminated.

Ahead of the agreed settlement date, the buyer will need to organise the financial arrangements for payment of the seller. At an agreed time and place, the legal representatives of the buyer and seller will meet. The buyer will then pay the balance of the property’s purchase price, authorising the agent to release the deposit minus the agent’s commission. The seller then has to give the buyer the executed transfer document and title documents. Before this can happen, any existing mortgage over the property must be paid off and any caveats lifted.

The exchange must also be registered with NSW Land Registry Services in the new names of the buyers. If the buyer has borrowed to fund the purchase, the lender will instead take the deed, register the transfer, and then hold the deed until any mortgage loan is paid out. Provided all the documentation is in order, the keys and other access devices to the property will then be handed over.

It should be noted that the services of a conveyancer mean neither the buyer nor the seller need be present at this settlement stage.

The place of insurance

If there is an insurance policy covering the property, sellers are advised to keep their coverage until settlement is completed and then contact their insurance company if the cover is no longer required.

This is because the risk of damage to buildings or other fixtures remains with the seller until after settlement, unless the contract states otherwise. This means that any damage to the property after the exchange of contracts can give a buyer grounds to get out of the contract by giving notice in writing within 28 days of becoming aware of the damage.

Conveyancing can sound like a complex and drawn out process but it can be made much simpler by engaging trusted representatives who are experienced in this area. While you decide the big issues like price, financing and any restrictions over the property, they will do the legwork on documentation and timelines to ensure the transfer of property is as smooth as possible.

At Felicio Law Firm we offer a ‘Fixed Fee – No Ifs or Buts’ pricing structure (dependent on the property type) for all conveyancing matters, with many years experience in the process from contract to settlement on residential, rural, commercial, strata and industrial properties. Call us today on (02) 4365 4249.

Marriage Divorce Separation Existing Will

What is the Effect of Marriage, Separation or Divorce on an Existing Will?

By | Estate Planning

Once you’re of age and working, making a will – or what lawyers refer to as ‘estate planning‘ – is a highly recommended course of action to ensure your wishes are carried out in the event of your death.

But the terms of a will are necessarily complicated once you marry or, later on, separate or divorce. Various pieces of government legislation have further complicated the picture, meaning expert legal advice is strongly advised when it comes to making, amending or updating a will.

How does marriage impact the terms of a will?

If you have a will and then decide to get married, that will is revoked once you exchange vows. The exception to this is if you make a will in the “contemplation of marriage”. That is, you decided to make a will to cover the circumstance of gaining a beneficiary (or beneficiaries) in the form of your new spouse.

A law change made on March 1, 2008, will also provide an exception to the ‘revocation-on-marriage’ will provision. If you got married on or after that date, any terms in your will which provide a benefit to your spouse, or any appointment of them as an executor or trustee of the will, or as a guardian (of children, for example) remains in place, though the will is otherwise revoked.

If you die and didn’t manage to update a will that was made before March 1, 2008, then you may be partially intestate depending on the terms of the will at the time you married. In this case, your spouse will likely be able to claim most if not all of your estate and a state’s intestacy laws will determine who is entitled to anything not left to your spouse in the will.

How does separation affect a will?

On its own, separating from your spouse has no effect on your will but as noted above, your now ex-spouse will have the largest claim on your estate should you die before you divorce. For this reason, legal experts in estate planning recommend you always update or amend your will if your separation from your spouse looks like it is permanent.

What happens if we then divorce?

Various changes to relevant legislation over the years affect the impact of divorce on your will. If you were divorced in NSW before November 1, 1989, the will you had in place at the time of that divorce is unaffected and your ex-spouse is entitled to any gift in your will, unless you specifically revoked or updated the document.

If you were divorced after the above date, any terms in the will in favour of your ex-spouse, or any appointment of them as an executor or trustee in your will, are revoked. The further law changes in 2008, however, mean that if you were divorced on or after March 1, 2008, and your ex-spouse appears in your will as a trustee for beneficiaries such as any children from the relationship, then your ex may still act as trustee despite the divorce.

Same-sex couples

The passing of legislation enacting marriage equality in Australia in December 2017 has complicated the legal picture around same-sex couples and their wills.

Many couples married overseas prior to the Australian law changing, subsequently making their unions legal in Australia. Expert legal advice should be sought to determine the validity of wills made by couples who were legally married overseas prior to the recognition of marriage equality in Australia and made a will after this time, particularly if it includes beneficiaries other than their spouse.

As this article demonstrates, the legal landscape when it comes to the impact of marriage, separation and divorce on estate planning can be complicated. It involves different pieces of legislation with different dates before or after which certain aspects of a will are valid or not. In this case, contacting a law firm with proven experience in estate planning matters such as Felicia Law Firm is a wise course of action. Contact us today on (02) 4365 4249.

Family Law Relationships Assets

Relationship Stability Vs Assets Security

By | Family Law

Today, it is more common than not for couples to live together prior to getting married.

In fact, in Australia alone, about 80% of couples conduct this, potentially being able to ‘try before they buy’.

However, financial consequences regularly arise from this, as couples who have lived together longer than two years become susceptible to the possibility of their assets being claimable, as if they were already married. A recent article by the Daily Telegraph on 19 June 2017 ‘Reason at Romance’s Heart’, pronounces this very idea as it involves the co­mingling of you and your partner’s money which can easily result in a loss of assets. Due to this, preparation is key, as all individuals need to consider their options on the possibility their relationships may fall apart.

To protect your assets, lawyers suggest that it’s best to develop a thorough and effective asset protection strategy long before the possible need for it. This will enable you to have a safety net to fall back on if anything goes wrong within your relationship for the future. This can be implemented by a few tips and tricks outlined by the following.

Protecting your assets:

In any relationship, the ultimate way in protecting your assets that you bring to the table should always begin with a record keeping and valuation at the time your relationship begins. This forms as a base level to be financially secure and provide protection of your and your partner’s individual assets. Co-habitation agreements are a common way to outline a relationship, property rights and liabilities between a couple. They act as a basic pre-nuptial promise for couples to create in an effort to protect each party’s distinct assets.

Housekeeping expenses:

Budgeting financial housekeeping can also maintain independence within a relationship. Household budgets are vital when living with your partner, particularly if separate bank accounts are to be upheld. This will reflect each partner’s responsibility and can act as a common test for compatibility, as you will not be bound by each other’s expenses. Finding out that your partner is a compulsive gambler if you are a savvy shopper could lead you to decide to end the relationship and having kept your finances separate, you have a better chance to keep your assets.

Property pathways:

Owning a property and the decisions relating to this are extremely important in any relationship. The two distinct types for couples involve ‘tenancy in common’ or ‘joint tenancy’ and the difference could potentially impact you and your relationship. These two choices provide entirely different outcomes if a relationship, unfortunately, breaks down and therefore, can impact on your assets and financial protection. ‘Tenancy in common’ allocates each partner the direct ownership of a designated portion of the property, where each individual will be accountable for their own mortgage and own share of the property. On the other hand, ‘Joint Tenancy’ involves the agreement that a couple is jointly and severally responsible for the entirety of the property and mortgage. When renting, by adding your name to the lease you gain equal possession of the space and opportunity allowing for a better financial position if it comes down to the event of a break-up. If your name is not on the lease and the unfortunate event of a breakup unfolds, the person with their name on the lease has an upgraded position to continue possession of the rental property.

Personal Budgets and their impacts:

Before you or any couple agrees to rent a house or apartment together, you should consider creating an individual budget for all monthly bills, utilities and individual expenses to be conducted whilst living together. Alongside this, by purchasing items separately you utilise your ownership and possession of certain items within the relationship, therefore, recognising who owns what particular piece of furniture etc. In doing this, both parties can understand and respect their own contributions and ownership of items, in the preparation for any unfortunate event.

Talk about it!

Lack of communication regarding any finances in a relationship may result in money problems and lead to breakdowns. It is encouraged that all couples allocate time to talk about money with their partners and understand each other’s goals, plans and monitoring of finances. This will consequently ensure both individuals are on the same page and allow issues to be raised for any discussion. Warning! Do not fall into the trap where one partner controls all finances and decisions in a relationship. This is the biggest NO NO in being able to protect your assets and individual security. Money matters should be a joint decision in any relationship, providing stability and security to your asset management.

Our team are here to help you with Financial Agreements (before, during and after marriage) contact our Central Coast family lawyers today.

 

Uncovering Unclaimed Money

Commercial Law – Uncovering Unclaimed Money

By | Business Law

Commercial law is also known as the area of Business and Corporate law.

This aspect of law focuses on commerce, trade, sales alongside individuals and businesses who conduct particular financial activities. At Felicio Law Firm, we will support you in navigating and addressing issues you face in respects to your business affairs.

Uncovering Unclaimed Money

Do you have unclaimed money waiting to be retrieve in an account somewhere?

In Australia alone, there is over $1 Billion dollars’ worth of lost money waiting to be claimed by its rightful owner at any given time. This is due to the fact that the money has become unclaimed for a number of years. Keeping track of different accounts from superannuation, shares, insurance policies, bank accounts and investments can be quite hard, however if not tracked properly, it can lead to the result of your own money becoming unclaimed and lost.

When money in these accounts convert as unclaimed, the funds are then paid to the Australian Securities Investments Commission. Once unclaimed money is received by the ASIC, it is then transferred to the Commonwealth of Australia Consolidated Revenue Fund where the legitimate owner can request for the money at any given time.

Felicio Law Firm is a registered agent to the ASIC, and we able to conduct the lodgements and searches for any unclaimed money in Australia linked to you. We will be able to assist you in finding unclaimed money you may have lost, and conduct the correct procedure in claiming this money back for you.

Same Sex

What Does Same-Sex Marriage Mean For Property Proceedings?

By | Family Law

In more than two dozen countries including Australia, the legalisation of same-sex marriage represents a significant legal milestone.

Because the legislation has only been in effect in Australia since December 2017, a key question that remains largely unanswered is how the legal recognition of same-sex marriages in Australia will affect property proceedings.

This is important because the changes to Australian laws that permit same-sex marriage here also allow for the recognition of same-sex marriages that took place overseas. In other words, a gay or lesbian couple that wed in a country that had legalised same-sex marriage prior to 2017 and is now living in Australia will also be treated as a married couple under our laws. And depending on each couple’s situation, that can be complicated.

Let’s say, for example, that a couple married in a foreign country which legalised same-sex marriage 10 years ago. After living there for a couple of years, the couple returned to Australia but were never officially divorced, because their marriage was not legally recognised here at the time. If they were to now be married under Australian law, this would actually be a second marriage in the eyes of the law.

Under applicable laws, namely 88D(2) of the Marriage Act, the second marriage is voided once someone enters into a second valid marriage. This means that a couple in the circumstances detailed above may be forced to abide by the de-facto provisions of the Family Law Act instead of the marriage provisions.

Changes to the Family Law Act that took effect in 2008 authorised the Family Court to change property interests for same-sex couples who are in ‘de facto relationships’, effectively putting them on equal footing with heterosexual couples in the same legal classification.

Even so, initiating property proceedings is a little bit harder for these couples. This is because they have to meet a higher burden of proof to verify that they are, or were, in this type of relationship. For example, they must prove that they lived together (prior to separation) and had some degree of mutual financial dependence. On the other hand, the existence of a valid marriage is the only evidence a court needs to find that a married couple shared joint property interests.

Another factor to consider is that married couples have one year (12 months) in which to initiate property proceedings in court after the issuance of a divorce order. Conversely, de-facto couples must initiate property proceedings in court within 24 months (two years) after they have legally separated.

Because they have generally separated without the Court’s help and without applying for an official divorce in the country in which they were married, stipulations pertaining to these deadlines may also affect same-sex couples. The good news, however, is that the Court already has a framework for addressing this dilemma. This is because it comes across similar issues when separated heterosexual couples have procrastinated before filing for divorce, and then make court applications for property settlements several years after their legal separation.

To date, the Court hasn’t had to decide how the recognition of past same-sex marriage will affect the implementation of these deadlines. However, it does have the authority to decide whether a case should be dealt with by a judge on an individual basis, based on its evaluation of whether Court intervention is fair and just.

If you are a gay or lesbian couple that wed in another country and you are now living in Australia, it is important that you fully understand how legal recognition of same-sex marriage affects you.

Felicio Law Firm can help you with this complex and still emerging area of the law, contact our Central Coast family lawyers today.

 

Litigation Guardians

Litigation Guardians – When Is It Appropriate?

By | Estate Planning, Litigation

One of the most common misconceptions about hiring a lawyer is that he or she will be solely responsible for making all of the decisions about your case both before and during any litigation.

It is true that your lawyer is legally and ethically obligated to provide the best possible legal advice and act in your best interest but provided you are making sound decisions based on the information he or she provides, your lawyer must also follow your instructions.

But what happens if you aren’t capable of telling your lawyer what to do? If you’re incapable of doing so because you’re under 18 years of age or disabled, the court will appoint someone called a litigation guardian to act on your behalf. In other words, this is someone who will effectively ‘step into your shoes’ to assess your best interests and instruct your lawyer accordingly.

To be selected as a litigation guardian, someone must:

  • be an adult;
  • demonstrate that he or she does not have any interest in the case that is opposed or potentially harmful to the interest of the person in need of his or her services;
  • be able to act fairly and competently;
  • consent to being a litigation guardian under applicable laws.

In some cases, relatives or other concerned parties will ask a lawyer to act as a litigation guardian. This is because a knowledgeable, experienced lawyer can act with a certain degree of objectivity and professionalism.

More often than not, the litigation guardian is a relative, friend or caregiver.  Barring that,  the court may select someone who does not personally know the person requiring a litigation guardian. In either case, the person chosen to fill this role must become familiar with the person’s situation and issue instructions that reflect their charge’s best interests.

Litigation guardians are generally appointed in the following types of cases:

  • Personal injury;
  • a criminal compensation application;
  • various matters related to Wills;
  • family provision applications.

A litigation guardian must be selected to represent someone in any Federal Circuit Court matter in which that party is incapable of understanding the proceeding or its potential consequences; or is incapable of fulfilling his or her legal obligations. Applicable court rules dictate that a minor must have a litigation guardian unless the court orders otherwise.

In accordance with Family Law Rules, a litigation guardian in the Family Court is known as a ‘case guardian’. In any Family Court matter a person who is legally classified as a child or is otherwise incapable of instructing his or her attorney, and/or fulfilling his or her legal obligations, must have a case guardian in order to initiate, continue, respond to, or intervene in proceedings. The only exception to this rule is if the court finds that the child not only comprehends the nature and possible consequences of the case, but can also make certain decisions and meet his or her legal obligations.

There are several methods for appointment. Someone can simply apply to be appointed a litigation guardian or case  guardian. In certain circumstances, the court may ask the Attorney-General to nominate a litigation guardian or case guardian. The court may also make its own motion for appointment of a litigation guardian. It may also remove or replace a litigation guardian.

Once the appointment is finalised, the litigation or case guardian must advise all other relevant parties about it in writing.

A newly-selected litigation guardian or case guardian must also abide by applicable court rules. Furthermore, he or she must do everything ordinarily required of a party to the litigation. Finally, he or she may also do anything that the party to the litigation would ordinarily do for his or her own benefit.

As we have already noted, a litigation guardian must obtain proper legal advice. In this context, he or she must duly consider any proposals for resolution of the case, such as participation in alternative dispute resolution.

In accordance with a relevant court order, any costs incurred by the litigation guardian are paid by a party to the litigation or from the income or property of the person that he or she represents.

To learn more about how to be appointed as a litigation guardian or any related issues, contact our Central Coast lawyers today.

Conveyancing 14 Resort Drive Hamilton Island

Conveyancing | 14 Resort Drive, Hamilton Island

By | Conveyancing

Conveyancing@ERINA  is a new Central Coast business initiative created to serve a need in the market for streamlined, cost-efficient conveyancing.

A ‘Fixed Fee – No Ifs or Buts’ pricing structure is offered to ensure you understand the total cost to complete your property transaction. Different fees apply according to the type of property being sold or purchased. These may include a block of land, a residential home, a unit in a strata complex, a business premise or commercial unit in a retail or industrial precinct, a rural lot in a subdivision or a unit in an aged care facility

See the listing online: