Frequently Asked Questions
MacGillivrays
Solicitors
Small and Medium Sized Businesses
Wills and Estates Law
Do
you provide a wide range of legal services?
Yes, the firm does provide a wide range of legal services. From General
Litigation, Property, Commercial and Corporate through to Banking and
Estate Planning.
Do you provide specialist services?
MacGillivrays, for over 50 years, has provided specialist legal services
to companies, business and individuals at a State, National and International
level. The firm had a much focussed beginning in Banking and Finance.
How much do you charge for your legal services?
MacGillivrays has always ensured that its fees are market- related and
has enjoyed the benefit of price flexibility.
When are you open for business?
MacGillivrays' official business hours are from 8.30am (EST) to 5.00pm
(EST), Monday to Friday except for Australian public and religious holidays.
However Partners and professional staff can be contacted after hours for
emergencies. Our Website, is open 24 hours a day, 365 days a year and
gives clients the ability to ask their questions from anywhere in the
world, at anytime of day or night and to receive a response from MacGillivrays
within 24 business hours of the firm receiving the question.
Small and Medium Sized Businesses
I
want to start a business - should I have a company?
This will depend on the nature of the business you want to enter.
Can't I get some form of protection?
Generally speaking in today's business environment you should have some
protection and this is achieved by placing your business in a company
structure which will provide you limited liability protection.
What
approximately will it cost me just to set-up a company?
What approximately will it cost me just to set-up a company?
It will cost approximately $1100.00, but check with one of our Solicitor's
because it may be advantageous to form a Family Trust simultaneously.
Will
I be liable for my company's debts?
Only if you have guaranteed them, to a Bank or a supplier, or breached
specific provisions of the Corporations Law.
Do I have to pay stamp duty on the purchase of my business?
Do I have to pay stamp duty on the purchase of my business?
Yes, there was a suggestion that stamp duty may be abolished when GST
is implemented however the States and Commonwealth could not reach agreement
on this matter. Currently Stamp Duty still remains.
How can I protect my assets?
Each person’s situation is different but the issue of protection
will depend on what you own and who owns it.
Will I need a Trust?
This is a matter that you should with your Accountant but again, this
will depend on your assets, income and present business structure. Another
point to consider is whether or not there are any tax advantages to be
derived from you instructing your Solicitor to create a Trust.
Will I save money by creating a Trust?
As mentioned above there are tax implications which you should discuss
with your Accountant. It will also depend on your income level and how
you and your Solicitor structure your Trust. Naturally the creation of
a Trust will involve the payment of professional fees to your Solicitor.
Can I be a sole Trader?
Yes you can however you should carefully discuss this matter with one
of our Solicitor's before you commence trading.
Will GST effect me?
Yes, it will affect you if you supply or any goods or services during
the course of your business activities.
What happens if l go broke?
It is a question of ascertaining the true facts of the situation. You
may be able to put a scheme of arrangement to your creditors to avoid
becoming a bankrupt.
Do I need an agreement with my business partner?
Yes,
it is advisable that you enter into a partnership agreement or shareholders
agreement.
How
much would that cost?
Approximately $850.00 or more depending on the complexity of the document.
Should I look at Wills and Estate Planning before starting a business?
Yes, and furthermore
you should look at how you currently own property.
Why
should I have a Will?
Every person over the age of 18 years, is entitled to, and should have
a Will. Remember your circumstances may change overnight. You may consider
a Will unnecessary because you may hold most of your property as joint
tenant with say, your wife, and therefore upon your death the survivor
would automatically take that property. The joint tenant may die unexpectedly
leaving you as the surviving joint tenant and the owner of substantial
assets that should be the subject of a Will. It is better to execute a
Will now rather than when you are of unsound mind and understanding. You
should be given an opportunity to appoint an Executor to administer your
affairs upon your death. Failure to make a Will can result in your estate
being distributed according to the Rules of Intestacy and not in accordance
with your wishes.
What happens if I die without leaving a Will?
A person who dies without a Will is said to die "intestate".
If you have not left a Will, it is up to the person with the greatest
interest in your estate to apply to the Court for what is known as Letters
of Administration. The Public Trustee can also be appointed as the Administrator
of your Estate and will charge a fee, being a fixed percentage of the
value of the estate, for its administration irrespective of how much time
is spent in the administration.
Appointing an Executor
You should choose an Executor who will be responsible and reliable for
the administration of your affairs such as collecting the assets, paying
any debts and dividing the assets amongst the beneficiaries in accordance
with the terms of your Will. You may appoint your Solicitor as your Executor.
What if I have a previous Will?
When you draw a new Will it is an easy matter to cancel your previous
Will.
What effect does marriage and divorce have on a Will?
If you marry your Will may be revoked automatically. It is possible to
draw a Will in contemplation of your marriage and such Will is not cancelled
upon your marriage. If you obtain a divorce any gift to your former husband
/ wife is revoked and any appointment of that person as your Executor
is cancelled.
Can I leave specific gifts to certain persons?
Yes. You may leave whatever money that stands to your credit in your Bank
account at the date of your death to a particular person. The same applies
to any specific item nominated by you.
What is a Testamentary Trust?
It is, simply stated, a trust that is created in your Will which directs
that a Trustee is to be appointed and orders the Trustee to administer
certain matters according to your specific directions. It usually, but
not always, involves the distribution of money in the Trust by the Trustee
to the beneficiary(ies) over a period of time. The benefits of such a
Trust include:
the Trust can protect
assets from Creditors;
assets in the Trust awarded
to a beneficiary can be protected in the event of that beneficiary's divorce
and will not become the subject of a Family Court Order;
if a beneficiary is incapable
of managing his / her own affairs then a Trustee can administer the Trust
assets on behalf of the beneficiary;
certain tax advantages.
Superannuation
- Is this an important aspect when drawing a Will?
Yes, you
must give consideration to your superannuation fund when drawing a Will
because sometimes the benefits from a superannuation fund will not form
part of your estate. Superannuation may be paid, upon your death, in the
following ways:
to your Executor so that
it forms part of your estate;
to a nominated beneficiary
in accordance with a "beneficiary nomination form";
to such person / persons
as the superannuation Trustees are satisfied are financially dependant
upon the deceased at the time of their death.