Experienced and friendly lawyers providing the over 55s, their families and the disabled with legal services in elder law, business law, wills and estates, estate planning, trusts and retirement villages.
Experienced and friendly lawyers providing the over 55s, their families and the disabled with legal services in elder law, business law, wills and estates, estate planning, trusts and retirement villages. Experienced and friendly lawyers providing the over 55s, their families and the disabled with legal services in elder law, business law, wills and estates, estate planning, trusts and retirement villages.
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Q & A

We hope you find the following Questions and Answers of assistance.

Please Contact Us with any Questions that may not be answered here.

Q How can a SeniorLaw Lawyer help you?
A

At SeniorLaw Sydney our lawyers value your rights and status. We have the legal experience and work ethic to promote your new business or retirement, to ensure that you enjoy legal protections offered to seniors and you understand often complex new areas now facing you as you head past the 50's. This often includes assisting family members as well.

To be a competent SeniorLaw solicitor requires many years of experience in numerous areas of law. Personal qualities are also essential to ensure clients feel comfortable from the very first meeting. In addition we:

endeavor to offer quality services that are value for money,
explain issues to your complete understanding, and
are readily accessible even after hours for emergencies or by office, home or hospital visits if required. This is the true meaning of personal service.

 

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Q What is the difference between a Power of Attorney and an enduring Power of Attorney?
A

The key issue here is legal capacity. When a person creates a general Power of Attorney and subsequently loses capacity this will automatically revoke the Power of Attorney. However if the giver of an Enduring Power of Attorney loses capacity it cannot be changed but it does remain in force until the giver of the Power dies.

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Q I made a Will 10 years ago but remarried last year. Should I make a new Will?
A

Yes you should make a new Will without delay. Your marriage last year automatically revoked your Will. In fact you no longer have a valid Will and if you passed away your estate would be distributed according to the rules of intestacy.

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Q Are Advance Care Directives binding?
A

Many people choose to complete an Advance Care Directive to provide directions for their medical care. In New South Wales this has the power of a direction only and is not binding by statute law. However it carries the weight of common law and may assist the medical profession in times of need.

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Q Can beneficiaries witness a Will?
A

No – if a gift is made by Will to a person who witnesses the Will or to that person’s spouse, except in particular circumstances, the gift is void.

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Q What happens if an asset is not included on the Statement of Assets and Liabilities lodged with the Probate application?
A

An Executor is required legally to disclose all assets and debts of the deceased person that he or she is aware of when completing this form for the Probate application. If the Executor becomes aware of another asset an additional disclosure to the Probate Court must be made. The Executor cannot deal with the asset until it has been disclosed.

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Q Can I change my Will?
A

Yes you can change or alter your Will at any time. Your ‘last’ Will comes into effect when you die. You cannot make the alterations simply by writing on your Will. If the change is minor a Codicil executed in the correct manner can be made. If the changes are substantial it is recommended you arrange for a fresh Will to be drafted to avoid any possible confusion. Regular reviews of your Will should be made in any case and a fresh Will made following any major life event e.g. divorce.

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Q My son has a gambling problem. How can I leave him part of my estate and prevent him frittering away his inheritance?
A

Situations such as this can be controlled by establishing a trust within your Will. After your death your son’s share of the estate could be held on trust for him and in your Will you could direct the Trustee to pay installments for example as your son reaches different ages.

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Q Can a de facto partner make a claim if left out of a Will?
A

Yes a de facto can make a claim against a Will in the same way as a legal spouse. Talk to us to see if you meet the definition of a de facto partner. Changes to the law mean same sex partners may also have the same entitlements as other de facto partners.

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Q What happens if I don’t make a Will?
A

In this case the law provides a formula to work out who inherits your assets. If no claimants exist your assets will pass to the government. If you believe you may be a potential beneficiary see us to discuss your claim. De facto partners are included in the intestacy formula.

Many people do not realise the problems created if a childless husband and wife die together without having made valid wills. If the husband dies instantly and the wife dies later on in hospital everything goes to the wife. But because the wife has not survived, both the husband’s assets and the wife’s assets will now be inherited by the wife’s next of kin. The intestacy formula would not apply to the husband’s next of kin and they inherit nothing. We encourage you to make a valid Will to avoid these pitfalls for your surviving family.

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Q Do I have total freedom of choice to decide who inherits my estate?
A

If you leave your spouse/ de facto or children without ‘adequate provision’ in your Will, after you die your executor may be faced with a legal challenge to your Will. You may wish to discuss this is more detail with us to minimise the risk. Alternatively, if you feel you may have a claim because you have not been adequately provided for under a Will, you should consult us without delay as time limits do apply. See our feature article on the Family Provision Act.We will discuss with you whether you meet the legal definition of an ‘eligible person’ who can make a challenge under the Family Provision Act.

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Q I was recently divorced. Do I need to make a new Will?
A

Under NSW law, divorce does not automatically cancel your Will. As far as gifts are concerned it only revokes any gift you made to a former spouse in your Will. All other gifts remain. However we advise you to make a fresh Will at this turning point in your life.

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Q Do I still need a Will if I hold all my assets in a joint tenancy?
A

Even though the assets would pass by survivorship to your surviving joint tenant, you should have a Will to cover other situations that may arise. If the other joint tenant dies before you the assets would pass under the terms of your Will, or under the rules of Intestacy if you don't have a Will.

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Q We are thinking of selling our house and buying a smaller unit. Where do we start?
A

First of all do not sign anything before talking to us. We can make this a smooth transition for you by helping you avoid many common problems. We will draft a Contract for Sale for you as this must be available for inspection before your property can be offered for sale. We have acted in property matters for over twenty years and our extensive experience assures you of excellent representation. We will clearly explain the steps of the transaction and ensure you are comfortable with the time limits of the sale.We will also act for you on the discharge of any mortgage registered on title at no extra cost. If you are thinking of buying a strata unit we will explain the legal issues of strata title and also look at any lifestyle restrictions that might apply, for instance the keeping of pets. In addition to completing all legal formalities for the transfer of title into your names we want to ensure you are happy in your new home.

See our Article:
Buying a Strata Unit

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SeniorLaw Sydney
ABN: 33 560 807 269
Level 5, Castlereagh Chambers
64 Castlereagh Street
Sydney NSW 2000
Australia
Tel. (02) 9235 3160
Fax. (02) 9235 2733
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