Believe me when I say that I have a love, hate relationship with Will kits.

I love them because, no matter how many I see, there are ALWAYS problems with them.  Issues arise not necessarily through the blank document (or template) itself, but by the way people complete them (or sometimes don’t complete them).  And in my world, problems equal profits.  However, at the same time my feelings towards them are best described as one leaning in the direction of hatred.  In fact, it is fair to say that a big part of me really despises them.

You see Will kits, by their very nature, sell an illusion of safety.

I am in the business of justice, and nothing (and I mean nothing), angers me more than the injustice that arises from a product being sold that makes promises that it can’t possibly deliver on.  While most people are aware of the reality that they need a Will, too often there exists a tension between this and the reality that one will need to devote funds to have one drawn up by a professional.  The creators of Will kits understand this, and accordingly, claim to provide the ‘peace of mind’ that comes with a legally binding Will yet for a fraction of the cost of a professional Will.

Nothing could be further from the truth.

In nearly twenty years in the legal profession I have observed time and time again how the most seemingly innocuous of issues arising from estates where a Will Kit was used, often leads to big issues (and expenses) when it comes to the finalisation of an estate.

This was made quite evident through a recent example examined by the Supreme Court in South Australia.

In the matter in question, the Will Kit appointed the wife and son “A” as an executor.   The  pre-printed section of the form continued with the words:

“…but if he/she/they does not/do not outlive me or is/are unwilling to act or incapable of acting then I appoint….”, and second son “B” was named.

In this situation the wife pre-deceased the Will writer, and as such, the question which was referred to the Supreme Court Judge, was whether son “A” was only appointed executor if the wife had survived, or whether, as the case was, the two sons “A” and “B” would act jointly as executors.

It was quite likely that the two sons did not care who acted as executor. If either one, or both acted, or neither; so long as the estate could be administered with the least amount of fuss, delay and of course, expense.

Unfortunately, the Probate Registry do not see things that way at all.

So off they went to the Supreme Court (at considerable expense) to get an order as to who should act as executor.  Turns out the Judge found that both sons would act as executors as other sections of the pre-printed and completed will kit indicated that a joint appointment was intended.

I’ve said it before and I will say it again, I love will kits.

You stuff them up, I get to fix them!

The old adage, ‘you get what you pay for’ applies here.  A cheap Will is most certainly that.  Cheap.  Have your Will professionally prepared by a solicitor skilled in all aspects of Wills and Estates.  An investment in this now will save your beneficiaries money and heartache later, at a time when they would probably prefer to be honouring your memory.

Wealth.   Perhaps it’s best to enjoy it now; because you certainly won’t be taking it with you to the hereafter.  It is a sobering thought, and one made a little less depressing, by the reality that you won’t be able to take your debt with you either.

While we don’t physically take our debts with us to the grave, in many situations these debts, contrary to widespread belief, do not necessarily die with us.  In other words, we leave them behind, usually with loved ones, to deal with.

Upon your death, if you have real estate secured by a mortgage, the bank will still get paid.  Alas, the debt won’t just disappear.  The bank will use the house as a security, an asset that they can rely upon to be repaid. . . even in your absence.   It also follows that if you have other debts these will generally need to be paid out of your estate before any distribution of your estate can occur.

In some circumstances, debts may even exceed the value of the estate.  In situations of bankrupt estates, it is critical to identify this early on in the administration of an estate, especially if you are the executor. Why?  In a nutshell in some circumstances an executor may personally be responsible for the debt (or parts of it that accrued after death).

Occasionally I have had debts waived.  For example, in an estate where a couple owned everything together, (home, bank accounts ), if one dies those combined assets automatically become the sole ownership of the surviving spouse.  In one such scenario there was a large credit card debt in the deceased’s name.  Since credit cards do not take security, and no one else had guaranteed payment, there were no assets in the estate to make payment.  The credit card provider just had to lump it. THERE IS NO OBLIGATION FOR THE SPOUSE, EXECUTOR OR ANYONE ELSE TO MAKE PAYMENT OR TAKE ON PAYMENT OF THAT DEBT IN THAT SCENARIO.

Since all situations are different, getting legal advice early is a must.  Accordingly, I must highlight the importance of having a valid and well thought out Will and Estate plan.

For a long time now I have been an outspoken critic of the trend for governments to move towards heavy taxes being imposed on Australians for probate services.  Last April (2016) I responded to the latest Probate fee increase implemented by the South Australian Government.  The fee increase, was, as I went on to explain, “…so exorbitant there can be no other way to classify it other than the reintroduction of a Death Tax.”.

Many years ago, in South Australia, we had a Death Tax (referred to as Death Duties).  In South Australia, these duties were paid upon an individuals’ death, and being based upon the value of the estate, were a reliable source of revenue for the government.  Death Duties were eventually abolished in 1980 and were replaced with a more modest (and flat rate) probate filing fee.  As I mentioned in my article, last April these fees were increased, along with the introduction of a sliding scale for the amount that is required to be paid (dependent on the size of the estate).  While it is not actually referred to as being a ‘Death Duty’ it is hard to see it as being any different to the one that was abolished many years before.

The United Kingdom has recently announced a significant change to how fees will be charged in relation to the administration of estates.  Up until now fees for the filing of probate was a standard and flat rate of £155.  However, from May 2017, this is all set to change with the implementation of a sliding scale for fees, solely dependent on the value of the estate in question.  While smaller estates, those less than £50,000 in value, are released from paying probate fees; the vast majority of estates will be slugged!  For instance, a relatively small estate, one that exceeds £300,000 (yet is less than £500,000), will pay £1,000 in fees.  Even more staggering is that the average estate, that where assets sit between £500,000 and £1M, will pay fees of £4,000.  The sliding scale grows in increments with all estates in excess of £2M being charged fees totalling £20,000.

Make no mistake, this is a blatant attempt on behalf of the UK government to reintroduce a Death Tax.

While solicitors in the UK (and even Australia) are currently racing to settle existing estates before the May deadline, the more interesting issue is the impact that this move will have on our own State Government.  From May 2017, the UK Probate Filing fees will exceed those currently in place in South Australia.  Clearly, we should all be concerned that the UK fee increase will act as an enabling influence for our own government to increase fees to this same (or even greater) level.

Are you cringing yet?  If not, you should be.

Of course, I’d urge all South Australians to join with me and place pressure on our current State Government to ensure that the current fee structure is placed on hold and that immediate steps are taken to return to a fairer system that charges a reasonable flat fee for probate filing services.

Robert F Kennedy in his 1966 speech that referenced an ancient Chinese curse said, “We live in interesting times.  They are times of danger and uncertainty; but they are also the most creative of any time in the history of mankind.”  While Kennedy was speaking to his generation, his words ring true for 2017 and the Technological Age that is currently unfolding.

Many of us in the legal profession are faced with overwhelming feelings of uncertainty as we decide which of these technologies to embrace, absorbing into our practice, and which to reject.  Indeed, Law, as with many other professions is currently in the grip of the broadest (and fastest) set of changes to the way that we currently do business.  With many people naturally being resistant to change, it is not surprising that quite a few law firms have flatly rejected the change brought about by new technologies.  It seems that some, will flatly refuse to adopt new ways of doing business, until they are literally cornered into making the change.

It is a topic that legal critics such as Richard Susskind have written about for many years now.  These evaluations are often accompanied by a warning that such resistance will inevitably be disastrous in the long term; with those incapable of embracing this new way of doing business being left behind.  For me, I’m not confused as to whether we should be embracing the changes brought by technology.  My dilemma is which of these new technologies should be embraced and which should be discarded for their potential to undermine the quality of the professional service that we, as lawyers, provide.

While Welden & Coluccio Lawyers has demonstrated leadership in harnessing professional software to customise, streamline, and provide a more consistent standard of service to our clients; I have often wondered how far this technology can be pushed before we move into a place where digital technologies replace the nuanced wisdom of a skilled legal practitioner.  In other words, do we really want robots doing the work of lawyers?

I think this is something that, to a degree should be resisted.  Indeed, from our daily practice, it is concerning to see online legal platforms operating under the premise that a Will (for example) can be produced for a set fee, following the clicking of a few drop-down boxes and completion of  given subject fields.

You see, such an approach (perhaps reminiscent of McDonald’s move to streamline the production of hamburgers), while it may lead to a more affordable and accessible product for the consumer (and greater profit to the owner), comes with huge risk.  You see, unlike the hamburger business, the delivery of legal services is fraught with risk.   While it would be wonderful to be able to enter data into a computer and have a solution identified for a pre-determined flat fee, the type of work that lawyers undertake, being based on human emotions, will never make this a viable option.

Quality legal services require an attention to detail that can only be delivered via a face to face engagement.  Lawyers not only read and apply the Law but we are skilled at applying this Law to real people.  It requires judgement, careful evaluation of the circumstances, and always an understanding of the people you are dealing with. This last bit is perhaps the most important.

Quite often during meetings, an answer is provided, whereby the manner of that answer raises concern or further questioning. After a while, the original answer is extrapolated in such a way, that the original answer has completely changed.

This is why trials are so risky and why lawyers always want to cross examine their opponents.

Creating an Estate Plan is not a one way meeting; it relies on the skilled lawyer asking probing questions and not taking answers at face value.

While Welden & Coluccio Lawyers continue to celebrate and embrace the widening options made available to us through new technologies, we remain ever-critical about how these may be applied for the benefit of our clients whilst maintaining the highest quality with regards to the services we provide.

Celebrities are not immune from this either, take for example the ‘out of date’ Will of Heath Ledger.

Everyone knows they should have a Will.  Whether everyone actually has one is a different thing altogether.  Whether it be apathy, laziness or fear of death, an alarmingly large number of adults still do not have a Will.

In certain circumstances it can be even more dangerous to have a Will that is out of date.  I’ve seen some so old, that the guardians chosen for minor children is irrelevant; because those very children are now aged in their 40’s!

A more serious consequence arises if a Will is not updated to take note of, or cater for, a change in personal circumstances.

Heath Andrew Ledger died tragically on 22 January 2008 aged 28 following accidental intoxication from prescription drugs.  A few months before his death, Ledger had finished filming his (well-deserved) Academy Award winning performance as the Joker in The Dark Knight.  After performing roles in Australian television and film during the 1990s, Ledger left for the United States in 1998 to further develop his film career starring in 10 Things I Hate About You (1999), The Patriot (2000), A Knight’s Tale (2001), Ned Kelly (2003) and Brokeback Mountain (2005).

In 2004 Ledger met and began dating actress Michelle Williams, and their daughter, Matilda Rose was born on 28^th October 2005.  Ledger and Williams ended their relationship in 2007 but remained on good terms until his death.

Despite his celebrity status, wealth of press agents, professional assistants, financial advisors and hangers-on; no one deemed it worthwhile (or if they did he didn’t listen/act) to update his Will.  The last one prepared in 2003 did not include his daughter.

A Will remains valid unless it is found to be a forgery or completed in circumstances that give rise to a serious suspicion that the Will maker was not of sound mind when signing it.  That is to say, that despite an obvious omission, the Will, on the face of it, is valid and the directions that appear therein must be carried out.

Celebrity Gossip website TMZ obtained a copy of Ledger’s Will and can be viewed here.

The Will divides what was likely to be a very large estate between his sisters and parents.

By all accounts, it appears that the lawyers were not called in, as so commonly occurs in Hollywood (perhaps the Aussie influence).  The Ledger family have openly admitted they will be providing for both Matilda Rose and Michelle Williams in whatever way they can.

It is worth noting that if the Ledger family were not so generous, then an inheritance claim  would have been the likely outcome.  In this situation, Michelle Williams, as the guardian of young Matilda Rose, would be left to take action in Court, suggesting that Ledger’s daughter was left without adequate provision.

Here is a fun fact.  If Ledger died without a Will at all, his daughter Matilda Rose would have been the sole beneficiary of his estate (assuming an estate distributed in South Australia).  An issue would arise as to who, until his daughter turned 18, would control the fund.  However, an out of date Will can have even more serious consequences than having no Will at all.

It is imperative that you update and regularly review your Will and other associated documents after any change of personal circumstances including marriage, divorce, new partners, children, death in the family or the purchase/sale of significant assets.

Good advice from experts in the field, who remain up to date on legislative changes and drafting trends, remains critical to establishing an effective and thorough estate plan.

Come and visit Jason Coluccio or myself, Greg Welden, at our office in Prospect to discuss your estate plan and how we might assist you or answer any of your questions.

When a spouse dies during a marriage or committed relationship, the surviving spouse will ordinarily assume the sole parenting role. While occurring today with less frequency, what happens if the greatest tragedy should occur and both parents should die before their children reach independence?

In case of the above event arising, it is critical that parents take steps to appoint an appropriate guardian(s) for their children. The appointed Guardian will have the legal authority and power to make significant decisions regarding your minor children in the event of the death of both parents.

Clearly, the guardian (s) of your children, should be persons of a responsible nature, and depending on the age of your children, it is normal (and advisable) to appoint persons who are already close to them.
Other factors that help clients when making this decision, is choosing persons who share similar religious beliefs, views and educational outcomes. Other factors which may have some bearing on this decision, is if the guardians have children of their own and the ages of their children.

Alternative and substitute appointments of guardians are also important because, like most testamentary appointments, there is a possibility of the chosen guardian predeceasing or becoming incapable or unable to take the appointment. This situation can arise when guardianship is appointed to a grandparent who may be elderly.
It is important to have a Will which appoints guardians of your minor children. To discuss this important inclusion, and for assistance in drafting your overall Estate Plan, speak to the experts at Welden & Coluccio Lawyers.

What is a digital asset?

A digital asset is anything you may own, or have rights to, that exist either online or on hard storage devices. Some examples of your online assets include email, social networking, iTunes, cloud storage and financial accounts. Hard storage devices include assets such as computers, laptops, USB, smart phones and any other external storage drives which are locked by way of encryption.

Why is important to consider our digital assets in estate planning?

 Whilst we are creating personal digital assets at an unprecedented rate, the laws governing them have not developed simultaneously. It remains unclear where the notion of digital assets fits among other traditional concepts of property. Therefore in order to protect these assets, it is important to make separate provision for dealing with them in your estate plan.

It is important to deal with these assets for various reasons.  This includes the prevention of identity theft, to have your history and memories recorded and your wishes expressed, to continue the management of any online business, to assist your executors in the estate administration process and also for preventing any litigation which may be required in being able to gain access to such assets.

Furthermore, whilst the value of a digital asset may vary, the particular type of value of the asset may be significant for a loved one or beneficiary. For example, the asset may have sentimental value such as digital photos, or it may have significant monetary value such as a professional blog or writing.

How do I include digital assets in my Estate Plan?

 The first step is to create a digital inventory of all your assets. This inventory will need to include the names of all your assets and where they are stored, as well as all the usernames, passwords and secret questions which will allow a nominated person to be able easily access them upon your incapacitation or death.

It is then important to think about what you’d like to happen to these assets upon your incapacitation or death. For example, would you like to have your Facebook account closed down or memorialised? Is there someone in particular you would like to have access to your iTunes account?

Once you have made the inventory and considered what you would like done with your assets, it is then important to make your wishes legally binding by formalising them in a Will and Enduring Power of Attorney.

Incapacity

The most important part of planning for incapacity is to execute an Enduring Power of Attorney.  This document will allow you to appoint someone that you trust to deal with your digital assets effectively and properly in the event you are incapacitated and can no longer control the accounts yourself.

Death

 Your Will is the document which addresses how your assets will be dealt with upon your death. Therefore it is important that your Will make provision for and include a clause that will give power to your executor to handle and manage your digital assets in accordance with your wishes and the terms of your Will.

Your executor, being the person you have nominated to administer your estate, should also have access to your inventory of your digital assets. This allows them to know what assets exist and where to locate them. The inventory should remain separate from the Will and should be updated as required.

The concept of ‘digital assets’ is no longer an idea of the future but rather it is very real and present right here and now. Therefore, it is prudent to seek advice from a solicitor in relation to your digital assets and your estate planning needs. A solicitor is best equipped to provide you with appropriate advice on how to best to structure your affairs in order to ensure your digital assets are dealt with effectively in your estate plan. For advice on Wills and Estate matters contact Jason Coluccio or the team at Welden & Coluccio Lawyers.

I say and write that repeatedly when speaking with new clients, current clients, friends or the public when presenting seminars or information sessions.  So why do we not think that celebrities don’t have a Will?  Of course they do.

Celebrity Wills range from the complex, think Michael Jackson, to non-existent, Amy Winehouse or, (would you believe it?) Abraham Lincoln (who coincidentally was a lawyer himself).

In this series I take a look at the Wills of the famous, starting with the sad and recent departure of Robin Williams.

Robin McLaurin Williams died on 11^th August 2014 aged 63 after a long history with depression. Williams started as a stand-up comedian in San Francisco and Los Angeles in the mid-1970s and rose to fame as Mork in the sitcom Mork & Mindy.  Other notable films include Popeye (1980), war comedy Good Morning, Vietnam (1987), drama Dead Poets Society (1989), the animated musical fantasy Aladdin (1992) and Good Will Hunting (1997).

In 1998, Williams won the Academy Award for Best Supporting Actor for his performance in Good Will Hunting.

Ordinarily, after the death of such a talent movie producers, studio and television executives clamour to re-issue old footage, found footage and new footage for a quick buck.  Not so with Williams.

In a unique legal move, Williams has banned the use of his appearance for a period of 25 years after his death.  Though not strictly speaking, comprising part of his Last Will and Testament, Williams transferred, upon his death, all rights to his identity – name, voice, signature, photograph, likeness and right of privacy/publicity – to a not for profit organisation the Windfall Foundation and cannot be used until 2039.

A Trust was created that controlled Williams’ identity with the man in sole control of that Trust, it was the innovative thinking to hard-wire a transfer of his identity and control of the Trust upon his death that has not yet been seen and may pave the way for other celebrities to follow suit and preserve their greatest asset and benefit charitable institutions.

It is thought that the Trust was created, not long before his death, in such a way to avoid potential significant taxation problems associated with deceased estates.  It is taxation, including significant penalties totalling US$700 Million facing the estate of the late Michael Jackson that continues to cripple what might have been a substantial benefit, rather than noose, for his children.

Williams left behind a widow and 3 children, Zelda, Zachary and Cody.

Taxation considerations are ever present when considering how to construct and draw your Will.  Will drafters must sometimes think outside the box to pre-emptively avoid problems before they arise.

Good advice from experts in the field who remain up to date on legislative changes and drafting trends remains critical to establishing an effective and thorough estate plan.

Come and visit Jason Coluccio or myself, Greg Welden, at our office in Prospect to discuss your estate plan and how we might assist you or answer your questions.

Take a look at the original Trust Deed here.

Download our Wills Brochure here.