So you have your business plan mapped out, have secured funding for your venture and are now ready to take a giant leap and secure premises for your operation. Before signing on the dotted line make sure that you know all there is to know about Retail and Commercial Leases.

Firstly, Retail and Commercial Leases are governed by the Retail and Commercial Leases Act 1995 (SA).

Before you enter into a retail or commercial lease, you need to obtain a copy of the lease for negotiation and a disclosure statement from the landlord. The disclosure statement will outline all significant elements of the lease, including but not limited to:-
– The property address; size of letable area
– permitted use of the area
– term of the lease
– amount of rent payable
– whether the lessee is required to pay outgoings
– right of renewal, and
– consequences of breaching the lease.

Before signing it is critical that you carefully read this document and have a thorough understanding of all the terms.

At this point it is important to note that the minimum term for a lease period is 5 years. 5 years can sound like an eternity when you are starting a new (and unproven) business. However, there are exemptions to this which may be described in the document as a short-term lease, an exclusionary clause or sub-lease.

You must make sure you understand the full effect of your lease period prior to signing the lease.

In the event that your business were to fail, it is sometimes possible to assign the lease. This can only occur with the consent of the lessor. Under this procedure, you request consent to assign the lease in writing, providing the lessor with all information of the proposed assignee. This information includes the assignee’s financial position and relevant business experience. Upon receipt of this application, the lessor must provide to you a notice in writing as to whether or not consent is granted. This needs to be done within 42 days. Furthermore, if consent to the assignment of the lease is granted you would be would be liable under the lease until either:-

– The second anniversary of date which lease was assigned;
– The date which the lease expires; or
– If the lease is renewed or extended after assignment, then the date which renewal or extension occurs.

In the event that landlord fails to grant consent to the assignment, you will be liable for the remainder of the duration of the lease. It is not difficult to appreciate that entering into a Retail or Commercial Lease is not without risk.

In any event, retail and commercial leases are always complex. It is prudent to seek advice from a solicitor if you are thinking of entering into a commercial lease arrangement. A solicitor is best equipped to provide you with appropriate advice. For advice on property law or leases in general, please contact Jason Coluccio or the team at Welden & Coluccio Lawyers.

As a Principal at Welden & Coluccio Lawyers, this article explores my belief in the importance of expertise and how this motivated my decision to direct my energies towards the field of Estate Planning and Litigation.

There is a tendency in the legal profession, particularly for small firms and sole practitioners, to accept any work which flows through the door. This activity, which is often rooted in the traditional ideals of what Law is, is often motivated by fear and a very real anxiety about what tomorrow may hold. A fear that tomorrow there may be no work to do and no money to pay the bills. While this is understandable it is also a counterproductive practice with the potential to cause extensive damage to your business in the long term.

Why?

In a nutshell, success in law is all about reputation. You are both your brand and your product. Anything which you do as a legal practitioner has the potential to grow your reputation or taint it. When you take on whatever matter flows through the door you are effectively diversifying your skillset to such a point that you risk incompetence.

Why?

Law is such a vast and nuanced field that demands nothing less than expertise. It is not humanly possible to develop the necessary expertise in every facet of the Law to guarantee competence, let alone expertise. In fact, the general practitioner or ‘Jack of all trades’ is, as the old adage suggests, at risk of becoming ‘a master of none’.   Too often, this leads to unsatisfactory outcomes for clients which over time can damage the reputation of your business, leading to more fear, more taking of work you are not requisitely skilled to perform, and so the cycle continues.

The decision to specialise was one Greg Welden and I adopted from the very inception of Welden & Coluccio Lawyers. The development of our expertise in estate planning is one which we view as a long term goal, and it is one that takes into consideration our context. That is, that with the passing of wealth from the War Generation to the Baby Boomers, we are amidst the single greatest transference of wealth the world and Australia has ever seen. It follows then, that the law of Estate Planning is not an area for the fainthearted, and as such, expertise is a must.

At some point, any lawyer who is really serious about being successful will need to ask the question; what am I good at? What is it about the Law which incites my curiosity? What fuels my passion for the Law?

However, merely identifying a passion is not enough to turn you into an expert. Passion must be fostered by action and a willingness to engage in your chosen area of law above and beyond the norm.   It may require that you present papers at conferences, volunteer as a member on a committee and read and write extensively about your passion.   Even so, it takes time to build a reputation in your chosen specialisation, and often it is about luck. By this I mean taking opportunities as they are presented and running with them.

As with all things in life, while there is no guarantee of success, concentrating your energies on what you are good at is the best strategy for ensuring that you shine brightest. When this happens something magical happens – your clients are satisfied knowing that their needs have been dealt with by an expert.

Welden & Coluccio Lawyers – The Estate Specialists

Call (08) 7225 8703.

Jason Coluccio writes frankly about future directions in the legal profession, why law firms are facing huge challenges today and what he did about it.

When I joined the legal profession in 2011 it was not as a fledgling, wide-eyed twenty-something graduate (with minimal life experience), but rather, as a reasonably savvy businessman with a proven track record in sales. It followed then, that the lens through which I viewed the legal profession was perhaps a little unique. It was this lens that had me immediately question what I viewed to be the rather antiquated practices in the legal profession as a whole.

You see my first experience in law was in the corporate world. It was a world which I felt was struggling to maintain a hold on the traditional ideals of ‘what law was’ and ‘what lawyers do’ amidst a tidal wave of change driven by economic and technological factors. It seemed to me that lawyers, in general, were grappling to hold onto a sense of their own autonomy and work practices that were more akin to a pre-industrial age type cottage industry. Where was teamwork? Where was the drive to improve the efficacy of the work that lawyers do? Furthermore, I was deeply concerned by the apparent inability for lawyers, as a whole, to engage with clients (and potential clients) using emerging technologies (and in this I’m speaking of those beyond that of a website).

While there was a handful of visionary lawyers (and firms around), the vast majority were stuck in the past, refusing to move forward and undoubtedly headed for a slow grinding halt. It was at this point that I came across the work of Richard Susskind, author of Tomorrow’s Lawyers: An Introduction to Your Future (2013). Susskind’s book echoed my observations exactly, while taking this a step further and suggesting real solutions for lawyers and law firms wanting to exist (and thrive) well into the millennium.

By the time Greg Welden and I were ready to start our own firm in March 2014, we realised that any business we created must effectively ‘redefine’ what law is, along with ‘reimagining’ the processes for how lawyers work. The old model, which valued autonomy, was unproductive and ineffective. Instead, our strength as a firm would be discovered through collaborative processes and teamwork. We knew that we must become social media experts, constantly alert to new opportunities and methods to engage with our clients. Finally, and of great importance, we understood acutely that Law does not exist behind a partner’s desk in a room lined with leather bound books. Rather, that law, and everything that lawyers do is relational. Our work is one focused on people.

While it was easy to be distracted by office locations, furniture and fancy letterheads, we realised that at the heart of our business would be the articulation of our vision and mission. This statement would be the driving force behind everything that followed. Accordingly, we spent many evenings in our “think-tank” discussing (and sometimes engaged in heated debate) the values we wanted to underpin our business. These sessions culminated in the following document which we live and breathe every day:

What We Do

Welden & Coluccio Lawyers is a small, boutique law firm that brings a unique and fresh approach to the practice of law in all facets of estate planning, administration and litigation.
We work collaboratively and transparently with clients to provide innovative solutions, a broad range of choices, thereby supplying a quality product that is enduring.
We offer real experience and specialist knowledge that is service driven, communicated simply and is economically responsible.
We are committed to our goal that sees us strive to become the most respected, innovative and distinguished estate planning firm in South Australia

Why We Do It

At Welden & Coluccio Lawyers…
+ We believe our primary role is to make Law look easy.
+ We believe People are at the core of our business and authentic relationships are central to everything we do.
+ We celebrate the challenge that emerges from what is difficult and complex.
+ We are passionate about learning and are committed to processes that drive us to evolve dynamically to meet the changing needs of our clients.
+ We believe in saying no to work outside our core practice area of law so that we can shine brightest in those areas we are deeply passionate about.

Did it work? As the saying goes, “the proof is in the pudding”. Our business, while being a tremendous amount of hard work, has grown in strength above and beyond our initial expectations at a rate that is sometimes unfathomable. With two offices, four solicitors, and one supporting staff member, our greatest concern is not will we expand but how best to manage this growth in such a way as to honour our original ideals. Furthermore, the evidence of our success is not something measured only in profits. For us, it is about the real difference we make in the lives of our clients. Law is relational. It is about people and when we remember that it becomes all the more satisfying.

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.

At Welden & Coluccio Lawyers we pride ourselves in having created, what we affectionately refer to as “a home-baked cookie kind of business”.

I appreciate that this may seem like a long stretch. However, suspend your disbelief long enough to put aside your image of a lawyer (wig and gown clad if you wish), stooped over a stove, as the smell of freshly baked goods wafts gently in the direction of the boardroom. While this is clearly fictional (albeit a delectable) image, it is one in which there does exist a small grain of truth.

You see I’m not really talking about cookies, I’m talking about authenticity. Law is always about people, and as such, it is intrinsically relational. The problem with lawyers is that too often, bogged down with files and musty old books, they seem to forget this fundamental truth. It is a principle that is frequently lost in the over-corporatisation of the business of law.

When Greg Welden and I started Welden & Coluccio Lawyers we made a conscious decision to abandon this type of business model. We wanted nothing to do with the practice and business of law which had forgotten or ignores, people. I’m speaking of the type of law where you are greeted at reception by a well-groomed, albeit clinical, receptionist who offers you a seat and a spritzer before joining your solicitor in a glossed up, over-sized, board room.
By contrast, we wanted to have the type of office where those who used our services valued us not just professionally, but personally. We wanted them to really know that they are not just clients but are actually people for whom we understand the extent to which the law has a very real and lasting impact in their lives. I am speaking of real people like Cathy, who came to us recently to have her Wills updated. She wrote:

I was aware of the importance of having an up to date Will and Power of Attorney. I have witnessed many stressful experiences for families who had not had these in place, and the unexpected has occurred.
I approached Jason Coluccio from Welden & Coluccio Lawyers because my family situation had changed suddenly and unexpectedly. I sought advice to ensure maximum protection.

Despite having an extensive and long term financial background myself, I found there were still many important legalities that I was unaware of, and Jason helped me to address these. Even though I did already have a fairly recent Will, certain potential complications had never been brought to my attention before. My circumstances had altered over the years, and it was important that it was up to date. Jason reviewed it, and found I had a few anomalies, which he brought to my attention.

I found the experience to be most beneficial and informative & I now have full confidence that my affairs are completely in order. Since then, Jason has assisted five of my immediate family members to do the same.

I would highly recommend Welden & Coluccio Lawyers to people who need expert advice, and have recommended them already to extended family and friends.

In many ways we can’t compete with the large multi-national corporate law firms. However, being small in itself is not a disadvantage. In fact, we relish it. Being small means that when you call us, chances are you will speak with an experienced lawyer immediately. In fact, he or she will probably answer the telephone.

“What about the cookies?” I hear you ask. Well, at Welden & Coluccio Lawyers we have those too; jam drops sometimes, but more often than not the home-baked kind made with real butter and a cup of tea on the side.
If your clients are real people too, then why call and make an appointment with Welden & Coluccio Lawyers, for a cookie and a cuppa and chat about their legal needs.

Welden & Coluccio Lawyers, the Estate Specialists, where real people really matter.

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.

If I had a dollar for every time someone said this to me I could retire right now.  You see everyone thinks that their circumstances are straightforward and it follows then that they believe that their Estate needs will be easily satisfied with either a “cheap Will”, a blank template where you enter names and addresses; or, even worse, a DIY Will Kit.

Truth is, few Wills actually are straightforward, and a generic Will rarely ‘cuts the mustard’ for most people.  In fact, there are a tonne of situations that can make drafting a Will a complicated process best undertaken by an expert.  Consider the following scenarios and ask yourself if any of these situations apply to you:

–          Have you ever been divorced or separated?

–          Following a separation or divorce have you remarried or have you commenced co-habiting with another person?

–          Do you have children to two or more different people?

–          Are you employed by the government and have superannuation with Super SA?

–          Do you own real estate, wholly or with another person(s)?

–          Have you ever been declared bankrupt?

–          Have your children ever been declared bankrupt?

–          Are you concerned that assets will be lost to children following a divorce?

–          Following your divorce are you concerned about what might happen if your ex-spouse remarries?

–          Do you own a business, wholly or with another person(s)?

–          Do you own shares?

–          Are you a professional and thus open to the risk of litigation (eg any professional, especially Lawyers, Doctors, Accountants and          Financial Advisers)?

–          Do you have children who are minors?

–          Are you uncertain if you have a death benefit associated with your superannuation fund?

–          Do you know who your beneficiary nominated in your superannuation is?

Each of the situations described above requires a high degree of personalisation when it comes to the drafting of a Will.  This is not possible to do with a generic Will and definitely not possible with a DIY Will kit.  Furthermore, some of these situations will necessitate drafting of a Testamentary Trust.  This specific type of Will is best undertaken by an Estate Specialist, with many in the legal profession unskilled in this area.

There are many risks associated with generic and DIY Wills.  In a nutshell they often prove grossly inadequate when it comes to meeting the needs of the ‘average person’, with the potential for unintended errors that may cost your beneficiaries large sums in legal costs.  At Welden & Coluccio Lawyers, we have the know-how to ensure that every aspect of your circumstances is taken into consideration for the protection of your beneficiaries and your wishes.

When you are dead, you are dead.  Nothing can be done from the grave to counteract what you should have planned for when you were alive.

In spite of this, too many of our clients leave it until they are in their twilight years before making the appointment to have their first Will drafted.  These are the lucky few in an all too common scenario of people who have delayed drafting a Will.  The unlucky ones never made it to the appointment.

Insofar as excuses go, I’ve heard them all.  However here are the most common ones:

I’m too busy.

Yes, life is busy.  Before you know it that Will you were intending to do when your little one was born still hasn’t happened. . . and the ‘little one’ is now having kids of their own.  Ironically, when your children are young is the time when they are at greatest risk should you die unexpectedly.  I know things are busy at this time.  While you are in the midst of nappies and sleepless nights, it is crucial that you make the time to arrange a Will.  Ultimately, the beneficiaries of your estate plan are your loved ones.  Neglecting your estate plan will not affect you, it will affect them.

I don’t have much money in the bank, so it’s not worth it.

Never assume to be able to predict how your loved ones will react to your passing.  I have seen many estates of nominal values being disputed by family members as a ‘matter of principle’.

Furthermore, a lack of physical funds in a bank does not necessarily equate to having no estate.  If you have ever worked in Australia you will have a superannuation fund.  Your superannuation, while not accessible until retirement, will form a considerable portion of your estate.  Furthermore, attached to this may be a death benefit, a sum which could easily grow the average superannuation fund into six figures.

While a Will does not prevent family members from disputing the distribution of an estate, it will ensure that your wishes are clearly recorded.

I/We can’t agree on our wishes

Estate planning for many people, especially those with blended families, can be challenging.  While this may be the case burying your head in the sand, rather than confronting such a challenge could have disastrous consequences should you die intestate.  I assume you would like to express who you would like to raise your children in this event.  Surely this is reason enough to make an appointment to get that Will drafted.

In the event you are faced with conflicting wishes, it is best not to overthink things.  Once you have determined what you would like your estate plan to be (even if it is different to your partner) you are halfway there.  Write these wishes down and seek advice from a lawyer.  Leave the thinking to us . . .that is what you pay us for.

I’m young and healthy, I’ll think about it later.

This is where I get to rant  about every ‘young’ and ‘healthy’ person that I knew who died young.  I won’t do that.  Suffice to say that life is unpredictable, and alas, accidents do happen.  The kindest thing you can do for your loved ones is to be prepared.  The benefit of addressing your estate plan early on; is the well-rounded advice you can receive on budgeting, wealth protection and taxation.

Do you pay for home insurance annually?  Think of your estate plan as an insurance policy – once it is in place it is always there when you need it. . . which you will (hopefully) later, or sooner if need be.

While some things are worth holding onto (we should perhaps keep our powdered wigs, glasses of scotch and leather inlaid mahogany desks), there are times when change should be warmly embraced with an enthusiastic high five.  Personally, my progressive approach to all things procedural leads me to like things simple and streamlined.  After all, time is money.  It never made any sense to me why, in this digital age, we persisted in the long-winded process of conveyancing.  For those of you who are unaware, this consists of one unfortunate soul physically heading down to a building on Grenfell Street, Adelaide, (at precisely 11:30am) whereupon the said person, would commence what is best described as an adult version of pass the parcel (minus the shiny wrapping and treats along the way).  Not only was this a mind-numbing task, it was an inefficient waste of time that could be better spent doing other things.

I say ‘was’ because soon this will be a thing of the past.  The recent launch of PEXA, the first national eConveyancing platform, means that I can envisage a time when a trip to Grenfell Street will only mean an afternoon of coffee, shopping and perhaps some chocolate.

With PEXA, conveyancing transactions will be undertaken online.  This means no more lines, conveyancing at a mutually agreeable time (between 9-5) and the immediate transfer of funds in real time!  Another important change is the responsibility of the conveyancer to sign your real property documents on your behalf.  This change places increased responsibility upon your Conveyancer and highlights the importance of selecting a Conveyancer with greater care.  As a rule it is critical to confirm that they are fluent with PEXA and willing to undertake transactions using this platform.  Furthermore, your Conveyancer should be a Certified Practising Conveyancer and a member of the Australia Institute of Conveyancers SA Division.

Welden & Coluccio Lawyers is excited to embrace this new challenge.  While we transition across to the new system, not all transactions will be immediately undertaken in this way (with the paper system remaining in some circumstances).  In spite of this, there can be no denying that this is a giant leap forward for the Australian legal profession.