FAQ

A will kit can be legal if completed correctly. However, the requirements of a legal Will are complex. Making sure a Will covers all issues is complex. In the event that there are errors in your Will, the Supreme Court may give requisitions and require further documents be provided before granting Probate. Therefore, the cost of doing a Will with a qualified lawyer is more valuable and may save your family money and time.

A ‘grant of probate’ is a court’s official recognition that a Will is valid and the nominated executor(s) are responsible for dealing with the deceased person’s estate. Whether a grant of probate is required depends on the assets of the deceased.

While some joint assets do pass to a partner on death, this may not always be the case. We also can’t decide who dies first in a relationship. It is important that alternative beneficiaries are put forward. Having a Will always makes this easier and less complicated.

If you don’t have a Will and are in a de facto relationship, if your assets are not joint you are not usually automatically recognised as a spouse and may have to apply for a declaration to be recognised as domestic partners. The cost can be more than a Will, and your estate will be distributed in accordance with the laws of intestacy, not what you want.

A Will only operates when you die. An Enduring Power of Attorney that operates in the event of incapacity and an Advanced Cara Directive operate whilst you are alive but you are incapacitated.

Super is one of the most complex assets. It depends on what type of Super you have and your personal circumstances as to whether it is distributed by the Super Fund or by your Estate. You should get advice regarding this.

You should think of a Will when you start employment. But the following may trigger a Will check-up:

• When there have been changes to your asset pool or the nature of your assets. Purchasing a house for example.
• When a guardian, beneficiary, or executor is now deceased.
• At significant changes to your financial situation
• When there are changes in your family structure (marriage, divorce, children, blended families, etc.).  Marriage makes any Will you had before invalid.  If you commence living with a new partner, having a Will update is something to consider.
• When you go through lifestyle changes, e.g. retirement
• If you enter into a business arrangement that may affect your financial situation

You should obtain legal advice as soon as possible, prefererably before speaking with Police.  You should not answer any questions with Police and advise that you want to speak to a lawyer.  If the police ask for your name and address, you must provide this.  You must also answer the identify of the driver of a motor vehicle and whether you are the owner of a firemar, and if not, identify the owner and answer questions in relation to the firearm including identifying other persons who have had possession.

It is important to obtain legal advice for any criminal offence, as it should be handled by a lawyer with experience in the area.  A lawyer can advise whether the Police can prove the elements of the offence and give  to your options available in dealing with the matter.  Even if you plead guilty, Criminal Lawyers can put forward mitigating factors for the Court to consider.

By inadvertently making admissions or by saying something that can be misconstrued, this could mean the difference between being able to defend the matter or not.

You should seek legal advice at your earliest opportunity.

Yes.

De facto Property settlement maintenance applications must be commenced 2 years after the date of separations.

Marriage property settlements and spousal maintenance must be commenced within 12 months from the date of Divorce.

Divorce – there are no time limits to when a Divorce application can be brought, except it can not be made until 12 months post separations.

Under the Family Law Act 1975, the Court adopts a four-step process.

1. Identify the net asset pool, including assets and liabilities.
2. Consider the following contributions:
   • Financial contributions,
   • Non-financial contributions,
   • Contributions to the family welfare inluding any homemaker or parents contributions,
   • Effect of any propose order on the earning capacity of either party.
3. Consider any other factors suchs as age, health, earning capaicty, responsibility to care and house a child or other party and financial resources and whether one party should receive an adjustment.
4. Are the proposed orders just and equitable.

A court takes into account a number of factors when decided who children live with and and who they spend time with.

The paramount consideration are the rights and needs of the child. If parents are able to agree on the living arrangement of the children, the Court does not usually have to make a decision.

If you are a grandparent you can make an application to the Federal Circuit and Family Court to consider whether they need to make arrangements for you to be able to see your grandchildren if this can not be agreed through mediation.