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.

While most lawyers draft Wills, unfortunately (and it pains me to say this), not all of them do this well.  This begs the question, what does a good estate lawyer do, and, how do I know if the person drafting my Will is any good?

It is important to note that if you die without a Will you die intestate.  Essentially this means that, since you fail to express your wishes, there can be no guarantee that your intended wishes will be carried out.   Effectively dying without a Will leaves your estate open to the possibility that your despised Cousin Frank might get his hands on your assets.

The best way to avoid this is to ensure that every adult has a valid and up to date Will.

You will note that the words ‘valid’ and ‘up to date’ are underlined.  Please understand that the best way to ensure that your Will is valid is to ensure that it is drafted by a legal professional.  Using a DIY Will Kit is a risky move that too often results in a Will being declared invalid.   In many instances, it can be even worse than dying intestate. Of course, Wills, like many financial documents need to be reviewed (at least every 5 years) and certainly should be revisited following the death of a spouse or other significant beneficiary.

So, you’ve made the decision to go and get your Will done by a solicitor.

Well done you!

At this point it is critical to understand that even if you think your circumstances are simple they either aren’t, or there are things you hadn’t yet thought of that need to be considered to have an effective estate plan.

While most lawyers draft Wills, few do it as their core means of business and consequently lack the skills and expertise to effectively negate issues arising from even the most common circumstances (divorce and blended families).

So what should people be looking for when selecting a lawyer to draft these important documents?  Here are my top 6 tips:

1. Do your Research and Look for knowledge and experience

Unfortunately, like everything in life, a little bit of knowledge and experience is everything.  In estate planning, a lot of knowledge and experience means even more.

There are nuances upon nuances upon nuances in estate planning.  The landscape is ever changing, laws are changing and will drafting is complex at the best of times.  The lawyer needs to know and intimately understand estate law, superannuation (and its regulations), taxation, family law, property law and company law – yes, that’s a lot isn’t it?

So, do your own research, see if the lawyer has given any presentations on estate planning, they may have a reputation for this beyond their own circles.  Ask around, or better still, call all those on your shortlist and ask us questions (not just how much!).

2. Find a person Who Asks Questions

When you are with the lawyer they will ask questions, lots of questions.  If they are not asking questions, chances are you have a dud.

Although you may think some of those questions are not relevant, they are…always.  So, answer them honestly.  Good questioning is the key to getting a great Will that will meet your needs now and in the future and awesome estate lawyers should be inquisitive by nature (how else are they to get to the bottom of any issue that may be the problem).

3. Expect to Pay for a Professional Product

Yes, you get what you pay for.

Ask for a $99 Will and you can be guaranteed to get an inferior product.  I know this because I know how much time goes into providing quality.  Sorry, there are no short-cuts to quality.  For more information about lawyers and fees click here.

A thorough estate plan is perhaps the most important document you’ll sign.  Most responsible adults think little of paying insurance on their house year after year just in case something happens?  At some point you will die.  While blunt, this is fact and emphasise the need for you to have a Will that is as thorough as possible.

4. Look for Someone Prepared to Think Outside the Box.

Be concerned If a lawyer cannot devise a solution to a problem suggests something like, “you should do it this way, it’s easier”.  Both scenarios indicate that you are in trouble with a lawyer who is lacking expertise. Estate planning is all about problem solving and finding a solution.  Great estate planners enjoy a challenge, in fact, we love them.

5. Find an Estate Planner Who Works With Other Professionals

An estate plan is not just a legal document.  It must fulfil taxation objectives, real estate objectives, accounting and potentially business succession objectives.  Most people have at least an accountant they see regularly.  Many will also have a financial advisor or real estate agent they rely upon.  It is imperative that your estate plan is devised in conjunction with other professionals as the best solutions arrive when all parties communicate and discuss your needs and goals.

A Will prepared in isolation may do more harm than good.

6. They Make the Complicated Seem Simple (r)

The Law is complex, estate planning is complex, there is a lot to get your head around.

A good estate planning lawyer should be skilled enough to explain complex ideas and strategies to you simply so that you can consider the advice being given to you and provide your instructions accordingly.

As with anything in life, those that know their job inside and out can explain things better than those that don’t.

The loss of a loved one is a profound and overwhelming experience. Not only do you need to deal with your personal grief and the roller-coaster of emotions, but you may also be responsible for finalising the financial affairs of the deceased.

The most common question we hear from our clients when they have lost their loved one is, “What do I need to do now?”

Such a question, tinged with sadness, is frequently accompanied by a degree of confusion and a feeling of ‘not knowing where to start’.

The checklist below is only intended to help you to understand what you may need to consider doing when you have lost a love one.

The first stage is to consider and understand the financial affairs of the deceased. Locating the following documents will provide you with an understanding of your loved ones affairs:

• The Last Will;
• Bank books,
• cheque accounts;
• Loan documents;
• Visa/Master card statements;
• Life insurance policies;
• Superannuation policies;
• Pension benefits;
• Refundable bond from a nursing home;
• Certificate of Titles if the deceased owned any property;
• Share documentation;
• Unpaid bills;
• Tax returns;

If the person was running their own business

• Trust documents;
• Company documents;
• Tax returns;

Although locating the above documentation can take some time, they will be critical when the time comes for administration and distribution of the Estate. Depending on the size of the Estate, a Grant of Probate may need to be obtained before any distribution of the deceased’s estate.

Should any of the deceased estate be distributed by you without a grant of Probate, you may be personally liable for any loss and therefore, it is important to know your obligations before you distribute any of the estate.

Welden& Coluccio Lawyers, the Estate Specialists, are happy to alleviate some of the burden during this difficult time and can assist you in determining if a Grant of Probate is required while preparing any applications for Court.

I love Will Kits!

Strange for a lawyer to say that isn’t it?  I love them because no matter how many I see there are always problems with them, not necessarily by the form itself but by the way people complete them (or sometimes don’t complete them).  And in my world, problems equals profits.

The most innocuous of issues can lead to big expense as a recent example examined by the Supreme Court in South Australia demonstrates.

The will kit appointed the wife and one son as an executor and then the pre-printed section of the form continued….

“…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 another son was named.

The wife pre-deceased the will writer and as such the question which was referred to the Supreme Court Judge was whether the first son was only appointed executor if the wife had survived or whether, as the case was, the 2 sons would act jointly as executors.

It was quite likely that the 2 sons did not care who acted as executor, if either or both acted, or neither, as long as the estate could be administered with the least amount of fuss, delay and of course, expense.  The Probate Registry do not see things that way at all.

So off they went to the Supreme Court 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!

Despite that…….avoid a cheap will kit and have your will professionally prepared by an experienced solicitor, there’s just too much at stake.

Welden & Coluccio Lawyers are thrilled to announce that they are finalists in the Australian Small Business Champions Awards.  The prestigious event, held annually in Sydney, is described as the ‘Oscars event for small businesses’.

Greg Welden and his wife Tanya will represent the firm tomorrow night, 1^st April 2017, at a gala presentation dinner held at the Westin in Sydney.  “While we have no expectations about securing the coveted prize in the category of legal services, it’s a major buzz to have our hard work recognised by the judging panel.”

The team at Welden & Coluccio Lawyers join with our clients and colleagues to wish Greg all the best for tomorrow night.

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.

A key concern for many families while preparing their Will and Testamentary documents is the discussion surrounding how they might ensure the needs of their children will be met in the event of their unexpected death or illness.  Indeed, this is a critical discussion that must happen, particularly when the clients have very young children.  While most clients in this situation come to us ready to discuss these arrangements (having nearly always discussed this prior to the meeting), the same can’t be said when addressing business owners in the process of preparing their estate plan with regards to planning for the succession of this business.

In fact, most business owners, who come to us for the purposes of estate planning have thought little (if at all), about what might happen to the business should they die unexpectedly, or, become incapacitated and are unable to run the business.

Consider the following scenario:

Eva and Jim are married.  Jim, an Accountant, has built a large, successful accountancy firm while Eva managed the family and occasionally assisted with general operations of the business.    They have two adult children, Tim and Sophie.  Tim is in the process of undertaking an Economics Degree at university and Sophie is in the process of completing her Bachelor Degree in Medical Science.  Tim is currently working at his part-time at his parent’s accountancy firm and plans to undertake post-graduate study in the future.  It is assumed that Tim will eventually take over the business when Jim retires at 65.  Sophie plans to work in the field of medical research and has no interest in the family business.

At face value, assuming that everything happens as it should, Eva and Jim’s plan sounds like a great one.  However, for couples in this situation, careful attention to estate planning is crucial to ensure that should something unexpected occur, a contingency plan is in place to deal with this.  Indeed, even if everything evolves as it should and Jim reaches retirement age at 65, careful estate planning operates to ensure a smooth transition of the business to their son.

Commonly, business owners appoint their spouse or their children to act as executor of their estate without adequately considering whether they are the best person to run the business in the immediate period following their death.  Ideally, in the case of Jim and Eva, their business will fall into the hand of their son when Jim retires at 65 and by this time it might be assumed that Tim will be appropriately skilled and qualified to manage the demands of the business.  However, should this not occur, if Jim was to die before this time (or become incapacitated), the choice of Tim as executor could be a disaster.

A skilled estate planner will be able to devise solutions to ensure that the client’s intentions are fulfilled even in the event of unfortunate circumstances.  This may involve the creation of a company trust, so that for an interim period, the control of the business falls into the hands of someone who can ensure seamless management of the business until such a time as the owner is able to do so.  In this situation, while appearing similar, there is a distinct difference between ‘ownership’ and ‘control’.

Furthermore, depending on how the business is set up, this will determine whether the business can be transferred to a beneficiary via a Will.  Indeed, if the business is owned by a company or a trust then they are not the property of the client, and as such are non-estate assets.

It also follows that careful consideration should be paid to other children who may not wish to have any involvement in the business.  In the situation described above, the daughter Sophie, intends to pursue a career outside the family business.  Jim and Eva would be wise to consider separate estate provisions for their daughter so as to prevent the possibility of eventual litigation.

While this article serves to identify a few of the things that business owners must consider when preparing an Estate and Succession Plan, it should be highlighted that this type of Estate Plan has the potential to be deeply complex.  With this in mind, business owners are encouraged to seek specialist advice when preparing Testamentary documents so as to cover every possible scenario.

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.