FAQ

WILLS

Why do I need a Will?

By having a Will prepared by a solicitor, you are doing everything you can in order to make sure your assets are distributed the way you want them to be.

We have prepared thousands of Wills and know exactly how to ensure you leave a healthy financial legacy to your loved ones.

A valid Will allows you to include the following important matters:

  • To choose an executor (they will be in control of making key decisions and may also have the financial control over any money held for your children);
  • To make specific gifts to beneficiaries (such as heirlooms and other important property);
  • To nominate guardians for your children;
  • To set up ways in which your estate can be distributed in a tax-effective manner;
  • To ensure any beneficiaries who are disabled or need protection are provided for and the assets protected for their needs;
  • To avoid costly and protracted administration of your estate.

Kelly Kelly Legal make preparing a Will easy and ensure that the document complies with the relevant laws.

Make an appointment to see Kelly Kelly Legal today so we can discuss your wishes for your family.

Can I make my own Will?

There are many very strict technical rules to ensure compliance for a valid Will. Preparing your own Will is like “playing with fire”.

You would expect lawyers to have a dim view in relation to home-made Wills as they take work away from them. However, home-made Wills and/or Legal Kits often result in extensive work for lawyers.

This means that a home-made Will can result in your estate paying considerable legal fees in order to distribute your assets.

Do I have to make a new Will if I get married?

The law provides that when you marry, your Will is revoked.

It is therefore very important that when you marry, you make a new Will.

What happens if you have more children after you've made your Will?

We strongly recommend you review your Will when you have children.

Kelly Kelly Legal have significant experience in drafting trusts in Wills which can ensure your children are adequately provided for financially if you die, whilst also protecting your legacy until they reach a certain age.

What happens if I move address?

It is not always necessary to update your Will if you change your address, however we recommend you contact Kelly Kelly Legal to provide us with your updated address.

What happens if I die without a Will?

If you die without a Will, the law dictates how your estate is distributed which can be contrary to your wishes.

Relatives that you have not had anything to do with may benefit from your hard-earned financial legacy and some of your loved ones may miss out entirely.

Extra and significant costs can be incurred in finalising an estate without a valid Will.

How often should I change my Will?

It is very important that you have a valid and up-to-date Will.

Life changes so rapidly and therefore, we recommend reviewing your Will every 2-3 years to ensure it reflects your wishes.

It’s also important to update your Will when there are changes in your life, such as:

  • Marriage
  • Separation
  • Death of a family member or executor
  • If you have children
  • If you purchase significant assets
  • If you set up a trust, company or new business

What is a Power of Attorney?

A Power of Attorney is a legal document which enables you to appoint an ‘Attorney’ to manage your financial affairs.

A Power of Attorney document operates while you are alive, but unable to manage your own financial affairs.

The Power of Attorney document is a necessary part of your personal estate planning. It empowers the person/s you appoint to manage your affairs:

  • Banking and investments
  • Real Estate
  • Regular payments including rates, taxes, insurance, medical, personal & household accounts

What is an Advance Care Directive?

An Advance Care Directive is a legal form that allows people over the age of 18 to:

Write down their wishes, preferences and instructions for future health care, end of life, living arrangements and personal matters and/or

Appoint one or more Substitute Decision-Makers to make these decisions on their behalf when they are unable to do so themselves.

It cannot be used to make financial decisions.

The new Advance Care Directive Form replaces the existing Medical Power of Attorney Anticipatory Direction and Enduring Power of Guardianship with a single Advance Care Directive Form (however any of these existing forms will continue to have effect post 1 July 2014).

PROBATE

What is Probate?

A grant of Probate is an order made by the Court which confirms that a particular executor or administrator has the right to administer the estate of a deceased person.

The grant also confirms  which Will was the last Will of the deceased or, that there was no Will at the time the deceased died.

If there is no Will, this is referred to as Letters of Administration.

The sorts of circumstances where a Grant of Probate is necessary are:

  • Where a deceased owns real estate either solely or as a tenant in common;
  • Where a deceased holds bank accounts, the bank may require the executor to have a Grant in order to access the funds for the beneficiaries (usually this is where the funds exceed $50,000 but this can be less depending on the bank):
  • In circumstances where one of the beneficiaries of the estate wants to “challenge” the Will.

Can Kelly Kelly Legal act for the estate even if they didn't prepare the Will?

Of course we can!

The choice of solicitor is up to the executor(s).

You do not have to instruct the solicitors who prepared the Will to be the executors of the estate.

If you are the executor of a Will and you would like Kelly Kelly Legal to act for you, make an appointment and we can assist you to obtain the original Will and make an application for a Grant of Probate or Letters of Administration.

What if I don't know if there is a Will? Where would I find it?

It can sometimes be a challenge for families to locate the last Will of a loved one. We can assist you to search for the last Will as we appreciate that it can be a difficult time.

We recommend undertaking the following searches:

  • Contacting the solicitor(s) that the deceased dealt with and if unknown, contact local solicitors near where the deceased live.
  • Contacting the deceased’s accountant or financial planner to see if they have a copy on file.
  • Contacting the deceased’s bank to see if they hold any safe-custody documents.

What does an Executor do?

The executor names in the last Will has the responsibility of the administration of the deceased’s estate.

Some of the key responsibilities of an executor include:

  1. Locating the last Will of the deceased.
  2. Check the Will to see if there are any funeral directions that have been made by the deceased.
  3. Safe-guarding the deceased’s assets. The sorts if things to consider are securing the house and contents of the decease, advising relevant institutions of the death such as Centrelink, Banks, share companies etc.
  4. Making sure assets remain insured;
  5. Locating and valuing all assets;
  6. Engaging a solicitor to prepare the Grant of Probate or Letters of Administration (if required).
  7. Attending to the deceased’s taxation affairs.
  8. Undertaking a final accounting for the consideration of the beneficiaries prior to distributing the estate.

This checklist is not exhaustive and we would strongly recommend making an appointment to discuss your role as soon as possible.

FAMILY LAW

Do all family matters have to go to court?

No.

We strongly recommend that you obtain legal advice as soon as possible.

It is a good idea to obtain legal advice when you are experiencing difficulties in your relationship, even if you have not yet separated.

Good legal advice can ensure that you have financial security following a separation.

We are experienced at negotiating good outcomes for clients without the need to engage in lengthy and costly litigation.

We can't reach an agreement, what do we do?

Not all matters are capable of a resolution without the need to go to Court.

This can be the case where you are dealing with a spouse or party that are unreasonable.

Kelly Kelly Legal have significant experience in representing clients in the Family Law Courts and can ensure your matter is handled competently and that the best possible outcome is achieved for you.

When can I get a divorce?

In order to apply for a Divorce, you must have been separated for at least 12 months.

You can however, commence negotiations for a property settlement prior to this date.

After you have divorced, you only have 12 months to commence an application in the Family Law Courts for a property settlement.

What happens to my children after we separate?

The relevant legislation in relation to children is the Family Law Act.

The law clearly states that unless there are exceptional circumstances, it is in a child’s best interest to have regular and substantial time with both parents.

If you are able to reach an agreement, Kelly Kelly  Legal can assist you to have the arrangement prepared in a binding way.

If you are unable to reach an agreement, the first step is to attend Family Dispute Resolution.

If the situation is urgent or you can’t resolve the dispute at Family Dispute Resolution then we can assist you to prepare an application in the Family Law Courts.

CONVEYANCING

What will my Conveyancer do for me?

Your conveyancer will ensure that you satisfy each of the legal requirements necessary for buying, selling or transferring property. Some of the duties include:

  • Prepare, clarify and lodge legal documents, for example contract of sale, memorandum of transfer
  • Conduct research about the property and its certificate of title. This includes checking for easements, type of title, caveats and any other information that needs addressing
  • Place and hold deposit money in a trust account
  • Calculate the adjustment of rates and taxes (these include Council, SA Water, Emergency Services Levy & Land Tax Rates)
  • Settle the property which includes; liaising with the other parties conveyancer, contact your financial institution, if applicable, regarding how and when the final payments are to be made and received, represent your interest with a vendor or their agent
  • Ensure all special conditions in the contract are fulfilled before settlement
  • Submit applications to Revenue SA for any grants you may be eligible for such as First Home Owners grant
  • Lodge all necessary documents with the relevant agencies
  • Inform relevant authorities regarding change of ownership after settlement.
  • Attend settlement on your behalf

How much does a Conveyancer cost?

Our fixed professional fee for purchase or sale transaction is $600.00 plus GST. However this does not include any out of pocket costs and verification of identity. Please contact us for a quote.

What is a cooling-off period?

Under the Land and Business (Sale and Conveyancing) Act 1994, when a person signs a contract to buy residential property, that person will have a cooling-off period of two clear business days. This law protects a purchaser who may have hastily agreed to purchase a property. The cooling-off period commences when the buyer or buyer’s agent receives a copy of the contract and Form 1signed by both the seller and buyer. Note that there are transactions, for example an auction purchase, where a cooling-off period is not applicable.

What is Rates Adjustment?

The conveyancer for the seller and buyer work out what proportion of the rates each of the parties pay at settlement. If the rates have already been paid by the vendor to the end of the billing period, then the vendor will receive a credit from the date of the settlement (or date of adjustment for a late settlement) to the end of the billing period.

I have signed a contract wth a special condition of subject to finance. What is the next step?

The next step is to contact your bank or financial institution to arrange the finance detailed in your contract. You will also have to pay the deposit to the trust account of the vendor’s agent after the cooling-off period has expired.

It is prudent to choose a conveyancer who will complete all the legal paperwork for transacting the property at this stage of the transaction.

If I'm selling property, when am I locked into a contract?

You are locked into a contract once you have signed a contract to sell your property. This means that you are legally obliged to go through with the sale. If you want to back out of a contract after it has been signed, you will need to speak to a solicitor regarding your options.

What happens if I withdraw from a contract to buy a property?

This would depend on the stage of transaction. The following are the three common situations where buyers want to withdraw from a contract:

  1. Withdrawal before vendor has signed contract: As long as there is no written acceptance by the Vendor, the buyer can still change their mind by giving the real estate agent written notice that you are withdrawing your offer.
  2. Withdrawal during the cooling-off period: you will not incur any legal repercussions however, you will have to forfeit the holding deposit. Any larger deposit will be returned to you. Note that a cooling-off period does not apply to an auction purchase.
  3. Withdrawal after cooling-off period and after  special conditions of the contract have been satisfied: This is a difficult situation as the buyer is considers to have defaulted on the contract. Most residential contracts state that if the buyer defaults, the vendor retains the deposit as “liquidated damages” and can further claim default penalties and compensation for any losses experienced and their conveyancing fees. Furthermore, the buyer will have to pay their own legal, conveyancing and any building valuation and inspection costs.