Genders and Partners

Intestacy: The Hidden Risks and Costs of Dying Without a Valid Will

Intestacy The Hidden Risks and Costs of Dying Without a Valid Will

 Perhaps you intend to create a Will but just haven’t gotten around to it, or maybe the size of your estate is such that you don’t think you need one. “Dying intestate” is the legal term for dying without a Will or leaving a Will that does not adequately deal with all of your property.

Intestacy is all but a guarantee that your loved ones will suffer a needlessly complex and expensive legal process after your death. Your best protection is to make your wishes known by consulting with a specialist Adelaide Wills lawyer at Genders & Partners.

Family Disputes and Costly Legal Battles

A Will dictates how your assets are distributed and names executors to lawfully carry out your wishes. Without a Will in place, you have no say in who inherits what. There are intestacy laws in every state and territory of Australia that determine the distribution of assets among your nearest blood relatives, but your loved ones may dispute the process and cause drawn-out legal battles, the costs of which are deducted from the estate. These state laws vary from time to time and from place to place, so the precise formula which decides who will inherit your assets depends on when and where you die.

Genders and Partners

A Pet Trust To Look After Your Pet When You Cannot

A Pet Trust To Look After Your Pet When You Cannot

If you become incapacitated or die, what will happen to your pets?

Most pets are dependent on humans for food and shelter, and are unable to look after themselves. It is cruel and illegal to release your pet into the wild to fend for itself, and there may be environmental concerns even if it could survive. As a loving and responsible pet-owner you should include the future well-being of your surviving pets in your   plan.

Genders & Partners is the oldest law firm in South Australia, and we have the knowledge, experience and sensitivity to ensure that the right provisions are made for the ongoing care of your pets if you should outlive them or lose the ability to care for them.

If you die or get carried off to hospital suddenly, your pet might be enclosed in a yard, a cage or inside the house. Your family has enough to deal with getting to grips with your illness or death, let alone worrying about a house full of pets. Will they even remember that you have a pet?  Probably not for several days, if at all.  We suggest setting up a South Australian Pet Trust, as this is a legal document which covers the ongoing care of domestic animals in specific circumstances, such as in the event of your death or incapacity. It names new caregivers or requests that trustees search for new homes for your pets. A trustee is then legally authorised to carry out your wishes from the day of your death or incapacity. A Pet Trust in South Australia differs from a Will, which may take weeks or months to come into effect, as it may require a Court process known as Probate.

Genders and Partners

Granny Napping Set to Rise as Baby Boomers Age

Granny Napping Set to Rise as Baby Boomers Age

Granny napping is defined as the legal movement of an elderly person from one residential location to another, and could include the removal of an elderly person from a nursing home care facility.

The aim of this may be to remove the elderly person from contact with other people such as family & friends, in order to isolate them and to facilitate financial abuse.  The prevalence of granny napping is expected to rise as affluent baby boomers age.

There has been a steady increase of “Elder Abuse”, and a decline in the treatment of vulnerable people in our society. This leaves the assets of the elderly person open to abuse. There have been instances where elderly people have been left to starve as disagreeable, uncaring relatives demand food and money from their elderly relatives.

Houses of elderly relatives have even been sold and the relative has been forced to move out.  This is just the tip of the iceberg when it comes to granny napping and elderly abuse not just here in South Australia, but throughout the rest of Australia, too.

One of the inherent problems in Australian society is the lack of effective communication between siblings and between siblings and elderly parents. Bitter relationships have sometimes developed between these individuals. Elderly people who have not yet succumbed to dementia or other debilitating diseases have even gone so far as making out Wills that only name grandchildren as beneficiaries, in an attempt to bypass their problematic & meddling children.  However this only tends to add even more fuel to the fire when it comes to resolving inheritance issues and often leads to litigation, which in some cases have involved grandchildren having to give back money to their own parents.

Genders and Partners

Elder Abuse Caused by Lack of Estate Planning

Elder Abuse Caused by Lack of Estate Planning

On 26/02/2014 the UK Court of Protection decided the case of JS –v-  KB & MP .

The Court itself said: “This cautionary tale illustrates vividly the dangers of informal family arrangements for an elderly relative who lacks mental capacity, made without proper regard for:

      i.         the financial and emotional vulnerability of the person who lacks capacity; and

ii.         the requirements for formal, and legal, authorisation for the family’s actions, specifically in relation to property and financial affairs.”

The case concerned a 90 year-old female suffering from a progressive dementia. She had been cared for by her daughter for over three years.  The Court found that “The actual care arrangement is in many ways excellent … [the patient] is receiving devoted care and is reported to be happy. For this, [the daughter] deserve genuine credit.”

However, the Court found that the daughter had used informal and improper means by which the patient’s finances were utilised by the daughter to fund the care arrangements, and this led to the sale of the home in which she had lived for over fifty years effectively ‘over her head’, and the proceeds of sale being placed out of her immediate reach, rendering her financially highly exposed; government benefits and retirement pension payable to the patient had been subsequently been diverted into an account in the daughter’s name. All of this was done without legal authority.

Genders and Partners

Treating Your Kids Differently in Your Will

Treating Your Kids Differently In Your Will

Family relationships can turn into nasty confrontations when it comes to administering a deceased estate and distributing assets. You may think that the way you have decided to distribute your estate in your Will is fair and even-handed, but your wishes may cause more trouble than they are worth when you die.

You should discuss your wishes with the experienced specialist estate planning team in Adelaide at Genders & Partners solicitors, so that you can find and prevent problems before they tear your family apart.

When you consider creating your Adelaide Will you may have good reasons for treating your children differently. If one of your children is in an abusive relationship with their partner, for instance, you probably will not want the abusive partner to get their hands on any of your assets. This can prove to be a difficult situation, and requires special care and attention. Special provision may have to be made to ensure that your assets are protected.

There are situations when one of your children may have lost his or her job due to no fault of their own and you may wish to allocate more of your assets to this person, knowing that it might be difficult for him or her to find employment. These sorts of decisions may seem right to you but they may seem unfair to another hardworking child who feels he or she has missed out on an equal entitlement to your estate.

Pre-nup Overruled On ‘Needs’ Basis

Pre-nup Overruled On 'Needs' Basis

The High Court of England & Wales has nullified a pre-nuptial agreement between a wealthy heiress and her impecunious husband, because the now ex-husband needs GBP1.2 million to re-house himself.

The wife (Victoria), is the 36-year-old daughter of a wealthy businessman, and she had already been given a house by her parents when she married her husband (Francesco) in July 2005.

Even at the time, Victoria’s father thought Francesco was marrying her just for her money. So her father insisted that they sign a pre-nuptial property agreement to protect Victoria’s money and the assets which her father planned to give her on her marriage.  The agreement stated that Victoria’s separate property and family gifts shall remain hers and Francesco shall not make any claim on them.

There was also a reciprocal clause that Victoria would make no claim against Francesco’s separate property, except that it did allow her to pursue him for maintenance if the marriage broke up. Francesco was allowed no such right. This clause proved significant in the subsequent divorce settlement, as it showed (according to Francesco’s lawyers) that the agreement was unfair to him – even though he had had independent legal advice before signing it.

Genders and Partners

The Importance of Updating Your Will And Estate Plan

The Importance of Updating Your Will And Estate Plan

At a minimum, your estate plan includes a Will and some powers-of-attorney. These documents are NOT set & forget. They are snapshots of your intentions at that point in time.

The older these documents are when they need to be used, the greater the risk of a successful challenge to them, when you will not be able to defend your decisions. It’s all about Risk Management.

If you have a proven track record of reviewing and confirming or amending your estate planning documents and keeping them up to date every 3-5 years, there is a much reduced risk of interference with your wishes.