Bowen Buchbinder Vilensky

Archive for February, 2016

What Do You Mean It’s Not Mine?
Thursday, February 25th, 2016

This one (2)

By Laura Di Cristofaro, Solicitor at Bowen Buchbinder Vilensky Lawyers

25 February 2016

With the increase in sophisticated financial plans and the heightened awareness of the benefits of asset protection strategies, what seems like a simple question actually requires careful consideration – what do you own?

This question is important when considering your estate planning objectives. Is it your vision for your children to take over the family business? Have you taken out life insurance to ensure your spouse is looked after? Who will take control of your family trust after your death? When you own, or have an interest in, what are commonly referred to as ‘Non-Estate Assets’, additional planning is required…

An ‘Estate Asset’ is an asset owned personally in your name.  You may transfer ownership of Estate Assets in your Will to your preferred beneficiaries.  An Estate Asset includes any asset that you own solely in your name or, if with someone else, as a tenant in common, such as:

  • real estate;
  • personal belongings;
  • shares;
  • cash investments; or
  • car

If you do not own an asset in your personal capacity (i.e. in your name) then that asset is a ‘Non-Estate Asset’. A Non-Estate Asset includes:

  • assets owned with someone else as a joint tenant;
  • assets owned by a Trust;
  • superannuation (subject to binding nominations and trustee discretion);
  • life insurance proceeds; and
  • assets owned by a company.

It is not possible to transfer ownership of a Non-Estate Asset by your Will as technically it is not yours to give away.  For example, company assets belong to all of the shareholders of a company, trust assets belong to all beneficiaries of that trust and superannuation does not automatically form part of your estate.

So, how do you deal with Non-Estate Assets and achieve your estate planning objectives? It is crucial to seek appropriate legal and financial advice with respect to succession of these entities and distribution of these assets. By discussing your objectives with an experienced estate planning lawyer, you can work together to create a strategy, in combination with the appropriate financial advice, to reach your goals and ensure that your legacy is secured and passed on to those who you would like to receive it.

If you would like to discuss your estate planning objectives, please contact Laura Di Cristofaro of our office at ldicristofaro@bbvlegal.com.au.

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You Have Decided to Separate… Now What?
Friday, February 12th, 2016

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By Adam Spashett, Senior Associate at Bowen Buchbinder Vilensky Lawyers

12 February 2016

Separation and divorce can and do occur at any time.  No matter what your circumstances are, whether you and your partner have mutually agreed, or if you have seen it coming for a long while, or it was completely ‘out of the blue’, separation will be one of the most difficult times of your life.

What makes separation even more difficult is when you and your partner have joint assets and/or children.

When you have decided to separate or divorce, getting confidential legal advice from an experienced family lawyer, and from a wills and estate planning lawyer, is unlikely to be at the forefront of your mind.  However, engaging a family lawyer on a confidential basis will ensure that you are provided with specific legal advice tailored to your situation.  It does not mean that you are committed to anything, and in most cases you will walk away with knowledge and understanding of what is ahead of you, and what your entitlements may be.

Each and every case is unique.  There will be cases where the parties will amicably negotiate and reach agreement, those where only a partial agreement will be achieved, and those where there are pressing or urgent issues which require immediate intervention.  Parties with complex financial arrangements will likely require additional services to assist them in achieving a resolution.

Outlined below are some things to keep in mind:

Financial Matters/Property Settlement

In regards to joint bank or share trading accounts, if things are amicable, perhaps a broad discussion about usage will suffice.  If there are accounts with significant funds, consider changing them so that both signatures are required to transact. Most banks will assist parties to make such changes.  Where you are both working, consider having your salaries paid into separate accounts in your sole name as a first step towards practical financial independence.

Cancel secondary credit cards if you suspect a vindictive shopping spree may be on the horizon. If possible, give some notice beforehand to limit the potential conflict likely to be caused.

If you are living under the same roof for the time being, think about setting up a PO Box for your personal mail.  If you’re moving out, be sure to redirect all of your mail and advise your lawyers, accountants, or other service provider to change your mailing address.

If you have a prolific online presence, be sure to change all of your passwords for everything, even if you think your significant other doesn’t know them.  Some of my clients will now set up a separate email address following separation.  It is wise to change all internet banking and other passwords, and ensure that any electronic devices that might synchronise passwords, emails, text messages, etc, cannot be accessed by your former partner.  The same goes with pin numbers for bank and credit cards.

Get some advice from a wills and estate planning lawyer.  Changing your Will to reflect your new circumstances is important. Keep in mind that unless the will is drafted ‘in contemplation of a divorce’, a divorce order will invalidate it.

Consider contacting your superannuation fund to change the nominated beneficiary. Whilst superannuation does form part of the estate (unless there is a Binding Death Benefit Nomination), the Trustee of the fund does not have to pay the funds to your estate in the absence of a Binding Death Benefit Nomination.  Similarly with Life Insurance and nominated beneficiaries.

Once your financial and property division has been agreed, be sure to have it properly documented by an experienced family lawyer.  This will ensure that all loose ends are tied up, and that consideration has been given to all aspects of your respective financial positions.  You agreement can be documented by way of a Form 11 Application for Consent Orders in the Family Court, or a Binding Financial Agreement.  Your family lawyer will advise you on the benefits and detriments of both options.

Parenting Matters

It is in everyone’s best interests, including, most importantly, the children, to present a united front to the children, being supportive of them and each other as parents whilst you guide them through this big change in their lives.

Creating or enabling conflict and exposing the children to such behaviour is looked on poorly by the Family Court.

If you parenting matters look as though they might become contentious, try to keep your own record of what arrangements have been put in place, and your discussions with your former partner.  Saving your emails and text message conversation is also handy.  In stressful times such as these, memory often falters, so records of your arrangements, including who the children spend time with and for how long, etc, may assist the parties in the future.

Try to agree with your partner on a routine, and then stick to it.  If the arrangements for the children are agreed, be sure to write them down clearly and concisely, so everyone is on the same page.

There are numerous private and government agencies who provide counselling, mediation services, and other helpful programs.  These service providers can help you negotiate with your former partner, and enter into a parenting plan.

You should also seriously consider documenting your agreement by way of a Form 11 Application for Consent Orders, which provide much greater certainty to the arrangements for the children.

Our Family Law team is happy to assist with any queries you may have.

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Landlords – Back to Basics
Tuesday, February 2nd, 2016

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By Les Buchbinder, Director, with the assistance of Giuseppe Graneri, Associate at Bowen Buchbinder Vilensky Lawyers 

2 February 2016

The starting point for all Landlords should be ensuring that they have an appropriate and well drafted lease for their commercial premise. It is a crucial step for Landlords as a poor lease or a bad leasing decision can be a costly mistake. The lease is central to the goodwill, value and future sale of a business.  A well drafted lease can avoid or assist the Landlord in resolving disputes that they may have in the future with tenants.

In Western Australia, the Commercial Tenancy (Retail Shops) Agreements Act 1985 regulates many retail shop leases. Landlords should understand their rights and obligations in relation to the lease and what procedures to follow in the event of any disputes.

In October 2015, the commercial leasing vacancy rate in the Perth CBD was 19.6%. This figure was expected to grow in early 2016 as final completions of new developments came onto the market and leasing space that was taken up during the boom, was handed back as businesses have downsized.

At its meeting today, the Reserve Bank of Australia’s Board decided to leave the cash rate unchanged at 2.0 per cent. The reasoning behind the decision was that recent information suggested the global economy is continuing to grow, though at a slightly lower pace than expected. This is the ninth month in a row that Australia’s official interest rate has remained unchanged at a record low 2 per cent.

The ramifications for Landlord’s entering into a bad or hastily drawn lease in this current climate is that they may find that they have an invalid lease or they may experience significant disputes and as well as potential litigation in later years as a result. When interest rates do start to rise in the coming years, we are likely to see a large number of disputes concerning rent reviews.

Legal and commercial advice should therefore be obtained before:

  • making any commitments to lease, take on an assignment or incur any other obligations;
  • signing an offer to lease or any other lease related document;
  • payment/receipt of any deposit or other monies; or
  • occupying the leased premises.

If you are a Landlord looking to lease in this competitive market, you should begin by considering your leasing requirements with the main goal to develop a profitable business. Once you have identified your leasing requirements (i.e. the lease term, annual rent, rent reviews, etc) you must then seek to include as many of these requirements as possible when negotiating the terms of a new lease or the renewal of a lease with the tenant.

For more information or to discuss your commercial leasing objectives and needs, please feel free to contact Les Buchbinder at lbuchbinder@bbvlegal.com.au.

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