Wills, Estates & Elder Law

A Will protects your loved ones and ensures:

• That someone you trust will manage and administer your Estate;
• Who will act as guardian for your young children;
• That only persons you choose will receive benefit from your Estate;
• You can decide how your property will be divided amongst your family.

If you die without a valid Will, then your Estate will be distributed according to fixed rules.  In this regard, please refer to our blog – “What happens if I die without having made a Will?”

This is not a clever way to conclude your financial affairs in this world.  It does not ensure that your assets are distributed to the persons you would want to receive them in the proportions that you would want them to get.

It is still an unfortunate fact that most people die without leaving a valid Will.  This means that they have not taken the care necessary to protect the interest of their loved ones.

Contact Malcolm McColm at McColm Matsinger Lawyers to ensure you protect your family.

Malcolm McColm
McColm Matsinger Lawyers

It is now common for Aged Care Facilities to cater for different levels of care, known in aged care language as ‘Low Care’ ‘High Care’ or ‘Extra Services’.

This approach is in line with the trend of Ageing in Place (AIP), which refers to living at home for as long as possible as well as being able to remain in the same Aged Care Facility as your health declines and your care needs increase.

Also there is the service of ‘Respite Care,’ which is available in some Aged Care Facilities – this is to provide short term care for a temporary resident and in some cases to give the facility a try out before any commitment is made.

To source and find the right facility, it is necessary to determine the level of care required.  This is done by an Aged Care Assessment called an ACAT.  You also need to consider whether it is likely that the level of care will increase over time, from low care to high care, in which case it would be preferable to choose a facility that offers both, to avoid having to move to another facility.

For list of facilities and other information see www.agedcareonline.com.au.

There are also differing financial arrangements to consider and these include the necessity in some cases for an Assets Assessment.  This can be a complex process and you may need to seek some professional advice from a financial advisor that specialises in this area.

Stay tuned for our next article on the legal paperwork relating to ‘Residential Care Agreements’ and ‘Accommodation Bonds’.

If you require assistance with assessing and understanding the legal documentation for an Aged Care Facility, please contact us.

Christine Matsinger
McColm Matsinger Lawyers

To further elaborate on our Article titled Retirement Villages and Aged Care Facilities – Getting Old on our new website www.willsandestatessunshinecoast.com.au here is a brief summary of the costs of Retirement Village options:
Depending on the type of Retirement Village, there are usually four main types of costs:

1. Buy in/Entry Costs
   If you are buying freehold (strata title) this will be what you pay to buy the unit.  If there is a leasehold/licence arrangement then usually you provide an interest free loan to the Developer of the Village.
2. Service Charges
   These charges cover the costs of running the village e.g. gardening, maintenance rates, repairs etc.
3. Maintenance and Running Costs of your unit
   These costs cover the cost of repairs and painting internally, electricity, gas, telephone.
4. Deferred Management Fee
   This can be described in several ways but most commonly is a fee that represents a portion of the Village Developers profit, e.g. to cover the cost of infrastructure and the common facilities, such as the administration office, pool, common area, fencing etc.  This fee can be calculated in several different ways.

It pays to have a clear understanding of the difference options available and the financial effects of entry to and exit from your proposed Retirement Village.

If you require assistance with Retirement Village options please contact us.

Christine Matsinger
McColm Matsinger Lawyers

It will come to us all.  And when it does for you or your parents, you will need to face the myriad of choice on offer for residential care.

In summary, the main options are:-  

• to remain at home with the appropriate care packages that are available (which will require an assessment by an Aged Care Assessment Team (ACAT);
• a Retirement Village, usually with a minimum age limit of 55 which generally offer:-
  • Independent living units (average age 74¹ )
  • Supported living units (average age early 80’s²)
  • Also included in this category are Rental Villages of those run by a Church or Charity or even purpose built demountable Home Parks for retirees.

Each of these can offer different sorts of titling arrangements.  These are mainly leases/licences or strata/group title, each of which offer different rights.

• an Aged Care Facility – either Low Care, High Care or extra services, which may all be offered in the one facility.

If you require assistance with Retirement Village or Aged Care Facilities please contact us.

Christine Matsinger
McColm Matsinger Lawyers

¹ Aged Care Who Cares 2011 Noel Whittaker and Rachel Lane�
² Aged Care Who Cares 2011 Noel Whittaker and Rachel Lane

Mutual Wills are used when partners / spouses agree to execute mirror image Wills – usually in favour of the survivor and provide for mutually agreed beneficiaries – often the children of the partners / spouses.

For a Court to protect the interests of all beneficiaries, that Court must be satisfied that there was an agreement between the two original Will makers not to revoke their Will without the knowledge of the other.

We provide advice in these circumstances to our clients and prepare relevant documentation that will ensure such future protection of beneficiaries’ interests.

For experienced Estate Planning advice regarding such issues, contact Malcolm McColm.

Malcolm McColm
McColm Matsinger Lawyers

What is a contract around Will?

It is a contract entered into by spouses / partners when they are making Wills in which they wish to provide for mutual beneficiaries and ensure that these beneficiaries’ entitlements will remain even after one of the Will makers has died.

The contract is a legal agreement which stands outside of the Will and which protects beneficiaries’ interests long after one of the Will makers has died.

Blended families and twenty-first century circumstances make this an effective tool in the armourment of Will makers to secure their wishes shall be carried out.

For advice on such Will contracts, contact Malcolm McColm.

Malcolm McColm
McColm Matsinger Lawyers

I recently blogged about the importance of an individual having a Will so as to avoid the consequences of dying “intestate”.  Having a valid Will becomes even more important where the deceased person is the sole director and shareholder of a company.  In the absence of a valid Will, the death of the sole director and shareholder of the company means that there is likely to be an extended period before a new director can be appointed and shares distributed to beneficiaries.  This may mean that there is an extended period of time where the company is simply unable to operate or trade, which will affect the value and reputation of the company.

Click on the following link to ASIC’s Information Sheet 73 for more details:
ASIC Info Sheet 73 – The importance of sole company directors/shareholders having a will

If you are a sole shareholder/director of a company and you do not have a Will, please contact us to arrange an appointment to discuss your estate planning needs.

Verity Maher
McColm Matsinger Lawyers

If you are a Member of a Self-Managed Superannuation Fund, you will be either a personal trustee or a Director of the corporate trustee of that Fund.

So what does happen if one of the members loses capacity? Their Attorney can act. But if there is no Attorney appointed the Fund risks becoming non-compliant.

It is essential that you have delegated by an Enduring Power of Attorney, your trustees’ obligations so as to ensure that the Fund remains compliant.

You would die if you knew the consequences of your Fund becoming non-compliant and so it is much better for you to deal with that issue now and ensure that you establish a suitable Enduring Power of Attorney to protect your Self-Managed Superannuation Fund.

Speak with Malcolm McColm to protect your rights and your Superannuation entitlements.

Malcolm McColm
McColm Matsinger Lawyers

Frequently couples get together when one, or both of them, have children from previous relationships.  These circumstances involve not only the desire of Will makers to provide for members in several family groups but also may create legal obligations to do so which the Will maker may not understand.

Even the most complex of family circumstances can be provided for however it is essential that Will makers in blended families get clear and accurate advice to ensure that their wishes will be carried out and that any possible challenge to their wishes after death will be minimised and protected.

Depending upon the Will makers circumstances there are multiple tools that may be used to achieve the Will makers wishes whilst complying with their legal obligations under Succession Law.

If you have a blended family and need advice contact Malcolm McColm or Verity Maher.

Malcolm McColm

McColm Matsinger Lawyers

When a person dies without having made a will, that person is said to have died “intestate”.  In order to distribute the estate, an application will need to be made to the Supreme Court of Queensland to appoint an administrator.

Once an administrator has been appointed and the debts of the estate have been paid, the deceased’s estate will be distributed in accordance with the Queensland intestacy laws.  The intestacy laws are fairly restrictive and may result in the estate being distributed in a way that does not reflect what the deceased person would have wanted, nor what their family would have expected.  The intestacy laws operate differently depending on the next of kin who survive the deceased.  For example:

• if the person who died intestate was married with only one child, then the intestacy laws provide that the spouse receives the first $150,000.00 from the estate plus the household chattels, and then the remaining estate is divided equally between the spouse and the child;
• If the person who died intestate was not married (including de facto marriage) and had never had children, then their estate would be distributed to their surviving parents, or if there were no surviving parents then to their siblings.

Of course, the above examples are just two of a number of possible scenarios.  If you wish to achieve more certainty regarding who will benefit from your estate upon your death then it is imperative that you make a valid will.  Having a will also means that you can make provision for gifts to friends or charities – parties which would otherwise be excluded under the laws of intestacy.

Please visit our website for further information or to arrange an appointment to discuss your estate planning needs.

Verity Maher

McColm Matsinger Lawyers