Key Affairs to have for 2021

The new year represents a great opportunity to take control of your current financial position and ensure that you remain secure should the coming year present unforeseen circumstances. If it has been some time since you last updated your will or contemplated asset protection, then you should take some time now to sort through your affairs and make sure everything is in order. Beyond protecting yourself both financially and legally, keeping your affairs up to date will also help protect your loved ones should anything happen to you. This is not a simple process, so we at Le Brun have compiled some questions to help guide you. If you find that your current state of affairs is unsatisfactory, you can contact us to speak to a lawyer today.

Are my assets protected should my circumstances change?

Although you may feel your current financial position is stable, you can never discount the possibility that your circumstances, whether personal or professional, may change. Should your creditors begin making claims against you, your assets could be taken. Assets liable to be claimed by trustees are:

• Vehicles, including your primary transportation should it exceed a set amount
• Properties you own, including your home
• Tools of trade should they exceed a set amount
• Cash or money in your bank account, although enough must be left to cover modest living expenses

When financial planning, you should always implement asset protection strategies to limit your creditors’ access to your most valuable assets. Seeking professional legal advice is a worthwhile exercise to keep your assets protected as a lawyer can help put in place trust and tax structures that can keep your assets secure.

If you have not implemented appropriate asset protection and creditors are beginning to make claims against you, it is vital that you seek advice from a lawyer who can keep you informed of your rights during debt collection and enforcement proceedings. Having a lawyer by your side will help minimise the loss of both business and personal assets while ensuring you have the right strategies and plans to address your concerns.

Is my Will up to date?

Many things can change over the course of a year, if you have experienced a significant change in your wealth, assets, or relationships, you need to make sure these changes are accounted for in your Will. If you have experienced one of the following life events since producing your previous Will, you need to update it:

• If you have married or divorced
• Bought or sold a property or business
• Had a child
• Significantly increased or decreased your assets

Your Will also must be officially updated if you have decided to appoint another executor to manage your estate, who your beneficiaries are, or who you are entrusting the guardianship of your children to. Although you may have come to an understanding amongst your inner circle, unless you make the necessary changes to your Will, your Will can be exposed to a challenge.

If you do not amend your Will after experiencing a significant change in your assets or relationships, then there may be important terms in your Will which you have missed and should be included in your Will. When there is something unaccounted for in you Will, the rules of intestacy will apply, meaning any assets not included in your Will would be distributed according to the law and not according to your wishes.

Amending a Will is not a simple task and if proper terms and correct procedures are not followed, a Will can be more easily challenged and invalidated. As well as preventing your final wishes from being carried out, an invalid Will can also further complicate an already emotionally fragile time for those impacted by your death and leave your loved ones vulnerable.

Seeking legal advice when updating your Will is a wise choice as a lawyer can help you avoid issues that could lead to challenges once you have passed away. A lawyer can also help you prepare related documents, such as Power of Attorney for Financial, Medical and Guardianship matters.

Drafting a Will when in a second marriage – I have stepchildren, what do I need to account for?

If you have entered into a second marriage, you will need to amend your Will to take into account this significant change in your life. When children and stepchildren are involved, this process can take on another level of difficulty, and it is important you discuss with your new partner how you wish to distribute your shared assets after you have passed.

Although adopted children and biological children you have outside of your marriage will automatically be included as beneficiaries if you leave you assets to “my children”, you will need to specifically outline whether you wish to include your stepchildren. Once you have decided to either include or exclude your stepchildren from your Will, you will need to take into consideration a number of scenarios, including:

• How will assets shared by you and your partner be distributed?
• If you make your children sole beneficiaries, how will you ensure your partner is protected should you pass away first?
• If your partner is the primary beneficiary of your Will and you pass away first, how will you ensure your children get a share in your remaining assets once your partner passes?

These are complex scenarios that will require you to set up trusts or keep your assets separate to those of your partner in order to reach your desired outcome. Given the complexity of these scenarios and solutions, it is highly recommended that you consult a lawyer when drafting your Will, as a lawyer can help you sought through the numerous considerations that must be made.

At Le Brun & Associates, our dedicated team of lawyers can help you get your affairs in order, giving you peace of mind and keeping you secure should your circumstances change. We provide sound and knowledgeable advice with the highest level of service to ensure you are protected. Contact us today for your FREE 30-minute consultation. At Le Brun and Associates, we always stand by you.

Purchasing a Property or Land? 5 Reasons Why you need a Lawyer on Standby

Our professional property and litigation lawyers will help you every step of the way with your land, first home or investment property purchase to achieve the best possible outcome. 

Purchasing a home or area of land is a major investment at any stage in life. While it’s an exciting process, it can be equally daunting, especially if you’re a first-time buyer. In theory it might appear straightforward to purchase a property, but in practice there’s a lot of work involved and several instances where matters can become complicated. For example, understanding legal jargon outlined in your contract or assessing your specific tax requirements.

Having an experienced lawyer by your side gives you:

• total transparency of your contracts;
• confidence in decision making; and
• peace of mind.

An expert solicitor assures you’re covered throughout all unexpected areas of the property purchasing process. They can alert you to any concerns along the way and certify that everything is carried out correctly and legally to protect your best interest and make your investment worthwhile.

Here are 5 Reasons why having a property lawyer on standby is essential and how they can help you through every stage of the purchasing process:

1. Providing Advice on Property Inspections

There can be several areas of concern to look out for when inspecting a property, from internal damage such as mould to contaminated land surrounding the estate. These types of issues are not only costly to handle if you’ve already signed a contract, but they are an extreme health hazard and can have long term negative effects on your wellbeing. An experienced solicitor can give you advice about site inspections and help you arrange for searches and certificates to determine the condition of the property in question. Once the documents and certifications regarding the property are obtained, a lawyer can then review them with you so you can make a fully informed decision before committing.

2. Arranging & Reviewing Official Documents

There are several terms and conditions to understand when signing a contract for a property or land. Contracts can be particularly confusing when legal terminology is used which can be time consuming and stressful to interpret on your own. A solicitor not only arranges all your contracts to ensure everything is covered but with their expertise they know how to check for the right inclusions and exclusions as well as how to identify any unfair clauses. For example, real estate agents are not obliged to tell you about construction sites or developments in your area such as apartment blocks, skyscrapers, or power lines. This information can also be difficult to get hold of from your local council, but a lawyer can provide a comprehensive contract review to ensure there are no unexpected surprises down the road.

3. Preparing Financial Advice & the Deposit

Whether you’re a first home buyer or seasoned investor, a house or land is usually one of the biggest purchases you’ll ever make so you need to feel financially confident. There are several financial factors to consider from stamp duty, GST and capital gains tax (if you’re also selling your current house in exchange for a new one). A lawyer can help you calculate any taxes, so you’re not blindsided by any upcoming costs. Additionally, they can help you with your deposit by placing it into a trust account to ensure it’s ready prior to settlement.

4. Working with all Statutory Authorities Between Settlement

Before a final settlement comes into play, which can take between 4 weeks to 4 months for your desired property, a lawyer will continue to conduct enquiries on your behalf. They will work with all statutory bodies including the local council and water authority to check whether rates have been paid up to date. They’ll also prepare a transfer certification of the property from the Office of State Revenue before you need to settle. A lawyer can also work with your financial provider if necessary, to make sure all aspects of your finances are ready to take place on your appointed settlement date.

5. Settling the Property

A lawyer will help you finalise everything from start to finish, from an initial contract review, final inspection disputes, as well as being by your side to settle the property on the nominated day. Their presence throughout the entire process is to make sure nothing is overlooked to guarantee the best deal moving forward. Settlement involves liaising and working with the current owner’s lawyer, your banking institution and local government agencies, such as, the Titles Office and council, to transfer the ownership title of the property. A qualified lawyer can also ensure that mortgage security is released from any lenders, remove any caveats and any other obstructions that might interfere with the final settlement.

At Le Brun & Associates, our dedicated team of Property & Litigation Lawyers can help you purchase a property or area of land with complete confidence. We provide sound and knowledgeable advice with the highest level of service to ensure that you get the best possible outcome from your investment. Contact us today for your FREE 30-minute consultation.

Protecting Your Assets from Creditors

Asset protection is an aspect of financial planning intended to protect your assets against creditor claims. Both individuals and business entities can use asset protection strategies to limit creditors’ access to their valuable assets whilst operating within the bounds of debtor-creditor law.

If your business does not have the appropriate structures in place or you have built up your entire wealth and property portfolio in your personal name, you may be vulnerable to loss of assets. Hence, it is worth seeking professional legal advice to ensure that your assets are well protected.

What do I need to know about seeking Asset Protection advice?

Asset protection advice details the most appropriate company structure for your business and offers guidance with establishing the correct trust and tax structures as to the ownership of assets. A qualified Asset Protection lawyer can assist you in the protection of both your personal assets as well as those of your spouse as a result of challenging business periods, creditors’ claims or statutory demands. It is important that you, as a business owner, are equipped with the right knowledge as to debt collection and enforcement proceedings in order to minimise the loss of your assets in these circumstances.

What are the different types of trusts used to protect assets?

There are many common mistakes in asset protection planning that can result in the loss of personal assets. Always seek professional advice to ensure that your assets are well protected.

A trust is an agreement where a person known as the “Trustee” is under legal obligation to hold property for the benefit of other parties, known as the “Beneficiaries”. The Trustee is the legal owner of the trust property.

There are many different types of trusts which can be used to protect assets:

• Discretionary trusts or family trusts are a popular business structure in Australia as they offer many tax advantages while still providing for asset protection if you’re using a corporate trustee. This type of trust suits certain businesses better than others so it’s worth consulting with a legal professional to determine if this is the right structure for your business. For example, if you wish to use your property assets for investment purposes, then you need to consider a property-specific trust.
• Testamentary trusts can be used to protect an inheritance from potential family law claims. A testamentary trust is commonly known as a “will trust” as these do not come into effect until after a death. The main benefits of testamentary trusts are their ability to protect assets and to reduce tax paid by beneficiaries from income earned from the inheritance.
• Binding Financial Agreement, commonly referred to as a “prenup” is an agreement between couples that states how assets, financial resources and liabilities will be divided if the relationship should break down. This is one of the best used and most cost-effective tool to protect assets. Learn more here.

Drafting the right trust and obtaining the correct advice as to the most viable trust structure is crucial to circumvent the loss of assets. This also ensures that each individual’s needs are met and takes into account their current financial situation. You should periodically seek advice on the suitability of the structure, particularly where financial or family situations changes in subsequent years.

What are the common mistakes people make regarding asset protection and how can I avoid them?

There are several misconceptions and common mistakes that people in asset protection planning that can result in the loss of personal assets – in particular, owning assets in individual names, the use of company ownership and the improper use of certain types of trusts. To ensure the best possible outcome, always consult a legal professional to ensure you are receiving the right advice tailored to your individual and business circumstances.

At Le Brun & Associates, we support our diverse business clients in a variety of areas of law with specialisation in Asset Protection. We understand your needs and work closely with you to develop the right structures and strategies to avoid and minimise creditors claim against personal assets as well as claims threatening bankruptcy or closure of your business.

We are recognised in Victoria for leveraging our extensive network to ensure you receive sound accounting and tax advice paired with legal strategies to develop a robust plan tailored to your business and individual circumstances. If you’d like to know more, we offer a FREE 30-minute consultation with one of our fully qualified and professional lawyers. Contact us today on (03) 9741 6000 to discuss your requirements.

Lodging a Caveat – Legally Protect your Property Rights in a Relationship Breakdown

Life circumstances and relationships can be unpredictable. It can be easy to make hasty decisions when it comes to moving in with a partner, getting married or purchasing a property together.

In both de facto relationships and marriages, it’s a very common occurrence for a property to end up in one person’s name. This leaves the other person who is not on the title with the risk and fear of losing out on the benefits of the property, despite any contributions they may have made towards it over the years, if the relationship were to breakdown.

If you have shared a property with a partner which was only contracted in their name and your relationship has ended, you may have a ‘caveatable interest’ in the property in order to lodge a claim, and protect your legal entitlements. Caveatable interests come in many forms but in order for one to be viable, the caveator (person lodging the caveat) must have some current legal or equitable interest in the property.

Lodging a caveat means your former partner cannot sell or borrow against the property without coming to a settlement with you first. However, you cannot just lodge a caveat if you feel you’ve been wronged because there are several penalties for lodging one without reasonable cause, so it’s really important to be cautious and seek legal advice beforehand.

Here are the guidelines of what you need to know about caveats in the instance that your relationship has ended:

What is a Caveat?

Lodging a caveat can be more complicated than you might think, and if done falsely can result in financial penalties. Always seek advice from a respected lawyer before you record a caveat.

The word caveat means ‘beware.’ A caveat is a document that any person with a legal interest in a property can lodge at Land Use Victoria. After recording, a caveat note appears on the title of the property, giving anyone dealing with the property notice that someone is claiming rights over it.

Most commonly when a relationship ends and the property is only in one partner’s name, a caveat is lodged because the other person is owed money, or they are seeking compensation because of their contributions to the property. However, having been in a marriage or a de facto relationship alone does not always give you reasonable cause to lodge a caveat. This must be determined under certain legal grounds.

What are the Grounds for Lodging a Caveat?

There are 44 available grounds for lodging a caveat in the state of Victoria. When it comes to Family Law matters, the majority of caveats are lodged on the basis of a constructive trust. A constructive trust is a duty by one person to hold some property for another person. A constructive trust is set up by a court as an equitable remedy (at the court’s discretion).

The most common reasons for a caveator to assert a trust in court include:

• They have made contributions to the value of the property which are not reflected on the title.
• They formerly transferred the property or their part of it to their spouse or partner.
• They have given financial contributions such as mortgage repayments.
• They have dedicated non-financial contributions such as hours of labour to maintain or improve the property.
• They were led to believe they had an interest or claim to the property from their partner.

For example, a typical scenario in court may involve a mother who has taken care of the children and household duties while the father has undertaken a career and contributed to the household financially. If the mother’s contributions have allowed the father the freedom to acquire financial gains and properties during the relationship, the mother can make a claim.

Why do I need Legal Advice for a Caveat?

Prior to recording a caveat on a property which is not in your name, you must always seek legal advice for your personal and financial sake. You may feel you have a caveatable interest on a property, but your individual circumstances may not hold up in court without professional guidance. Taking matters to court can also be costly and false claims can result in penalties, so you want to ensure that you are well informed about the complexities involved in lodging a caveat well in advance.

Do you think you have a caveatable interest on a property? At Le Brun & Associates, our experienced and compassionate family and property lawyers can help you lodge a caveat. We understand lodging a caveat is a sensitive matter, particularly in the event of a relationship ending. That’s why our team are dedicated to supporting you with accurate, fast and cost-effective advice.

Contact us today for your FREE 30-minute consultation to discuss your best options.

Rental Repairs: Knowing Your Tenant Rights

The rental world can be complex, especially when it comes to the tenant and landlord relationship. One of the most common disputes between tenants and landlords is repairs. Both sides have rules and regulations to help achieve a fair outcome when it comes to upkeep and maintenance, although they aren’t always straight-forward to manage!

If you’ve recently become a tenant, it’s best to understand your rights and responsibilities and the correct process of putting forward a repair claim.

Who is Responsible for Repairs?

Landlords are responsible for all urgent and non-urgent repairs unless a tenant has caused damage, then the tenant is liable for repairing damages.

This is a common question that can often be confusing for both tenants and landlords. According to the Residential Tenancies Act 1997, Landlords are responsible for all manners of urgent and non-urgent repairs. It is the landlord’s responsibility to fix and pay for general wear and tear repairs, along with any damage caused by natural disasters, for instance, a roof that has been damaged by a fallen tree.

However, tenants are responsible for any accidental or malicious damage done to the property during the time of the lease, which the landlord is in their right to ask you to pay for. Accidental damage could be as little as a red wine stain on a carpet whereas malicious damage could be nails hammered into a wall without the landlord’s permission. Any damage you cause needs to be reported to the property manager or landlord immediately.

Non-Urgent Repairs

Non-urgent repairs are considered things like a broken appliance that comes with the property or something that is not working to its full potential such as a dishwasher but does not classify as ‘urgent.’

To arrange non-urgent repairs, notify the landlord or real estate agent in writing, advising them what needs to be repaired. It is best to do this in writing to keep everything documented for your records in case a dispute escalates. The landlord then has a responsibility to address and fix non-urgent repairs within 14 days of being notified.

Urgent Repairs

Urgent repairs are classified as any fault or damage in the property that make the place unsafe or insecure such as a burst pipe, electrical fault or gas leak. These repairs must be addressed and fixed immediately by the landlord. Again, it is necessary to notify your landlord or real estate agent about urgent repairs in writing.

If urgent repairs are not taken care of in a timely manner or you cannot get hold of your landlord, you can arrange for the repairs to be carried out yourself for up to $1800. In this scenario, it’s very important you keep all of your receipts and records so you have no issues with your landlord reimbursing you. After you have made repair arrangements, your landlord has 14 days to pay from the date they received notice.

If you cannot afford the repairs out of your own pocket, you can apply to the Victorian Civil and Administrative Tribunal (VCAT) for an order that enforces the landlord to carry out the repairs.

In no circumstances should you withhold rent from your landlord or use your rent money to carry out repairs. If you get 14 days behind in your rent, the landlord can serve you with a 14 day Notice to Vacate.

If you’re having trouble with your landlord, you should always first try to negotiate an agreement. If informal negotiations fail, it’s best to seek professional legal advice to discuss your options if you need to take further action.

At Le Brun & Associates we aim for fair outcomes through mediation and negotiation before a dispute escalates to litigation. If you need advice or more information on your tenant rights or a rental dispute, we can discuss your needs during a free 30 minute consultation. Contact us here to find out more.