Estate Planning, Wills & Power of Attorney

Estate Planning, Wills & Power of Attorney

Contemplating your own mortality, or that of a loved one, is an uncomfortable but unfortunately very necessary reality.

One way of ensuring your loved ones are looked after when you pass is to review and make decisions about your personal and business affairs while you are alive.  This can be as simple as having a Will, but often involves powers of attorney, and enduring guardianships.

Having these documents in place makes the entire process a lot easier for your family.

If you don’t do this and you pass away, you die intestate.  This can often create a lot of problems for your loved ones.

At Legally Yours, we will connect you with a fixed-fee Estate Planning lawyer who will explain the process to you thoroughly and recommend the best options for your individual circumstances.  Our lawyers are available out of hours or on weekends, and will come to you to execute the documents if so required.

Our Estate Planning lawyers will provide a complimentary phone consultation to talk you through the process of drafting and executing estate planning documents, and will then provide a fixed-fee quote for each document, including:

Our areas of expertise include

  • Wills
  • Enduring Power of Attorneys
  • Enduring Guardianships
  • Living Wills
  • Applying for a Grant of Probate
  • Applying for Letters of Administration
  • Contested Wills
  • Deceased estates

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Articles relating to Estate Planning Law

Commercial leases in Victoria – what tenants need to know

Retail commercial leasing can be a complex area. Here is Legally Yours’ guide to help you understand the key factors that may affect you and your business when you sign a retail lease.

What is a Retail Lease?

A retail lease is a type of commercial lease that relates to retail premises. Retail leases in Victoria are in most cases governed by the Retail Leases Act 2003 (Vic) (“the Act”).

Is my business covered by the Act?

If your business mainly sells or hires goods or services to the public, then your premises will likely be considered ‘retail premises’ under the Act.

Some examples of ‘retail premises’ are:

1. Cafes and bars
2. Clothes shops
3. Hairdressers
4. Beauty Salons
5. Architects

Some examples of businesses not caught by the Act:

1. If your business is primarily used for wholesaling, manufacturing or storage
2. If your cost of occupancy is more than $1m per year
3. If the term of the lease is less then one year (unless consecutively renewed)
4. You’re a listed corporation or a subsidiary of a listed corporation
5. Your business has been granted an exemption.

In all of these cases your premises are generally not considered ‘retail premises’ and therefore the Act will not apply to your business.

What should the landlord give me before I sign a Retail Lease?

The Act requires the landlord to give the tenant the following:

1. A copy of the proposed lease at least 7 days before you sign the lease
2. A copy of the Victorian Small Business Commissioner Information brochure on retail leases
3. A disclosure statement at lease 7 days before you sign the lease

Once you’ve signed the lease the landlord is required to provide you with a copy of the fully signed lease within 28 days.

If you’re thinking about signing a retail lease and would like a leasing expert to guide you through the process please contact Mira Stammers on 1300 822 708.

Mira Stammers is the CEO of Legally Yours. Mira has extensive experience in corporate law in both Melbourne and London and regularly advises business owners in the areas of corporate and real estate law. Mira has a team of expert lawyers experienced in all areas of law that provide fixed-fee legal advice to businesses across Australia. If you’re looking for an expert leasing lawyer, Mira can help. Email mira@legallyyours.com.au

Risks relating to copying documents off the internet

Small business can be tough. To set up your business correctly can be expensive, particularly if you’re trying to do everything by the book. We get it. As a business owner you’ll probably need to have a range of legal documents drafted for your business such as:

– Shareholder agreement or Partnership agreement
– Contracts with suppliers
– Terms & Conditions
– Privacy Policy
– Employment agreements
– Website terms of use (if online)

Having these documents in place will help you protect your business from liabilities, help you structure exactly how your business operates, and help your clients, suppliers and employees understand what they can expect from you.

But the cost of engaging lawyers can mean that setting things up properly at the outset is not possible. So what to do? Many people turn to the internet. It’s very tempting to just copy someone who has a similar business and who has their documents available online. We don’t blame you. But, like a protective mother would say, if you’re going to make that choice, at least be aware of the risks.

Copying documents and repurposing them for your business can put your business at risk and do some serious harm. Here’s how.

1. Copyright

If you’re copying someone else’s documents without their consent then what you’re effectively doing is stealing their intellectual property. This breaches copyright laws and could put you and your business at risk. To avoid this, business owners should ensure all of their documentation is original. If there’s a budgetary constraint then try to find a fixed-fee lawyer and get one document drafted at once.

Good lawyers will tell you what you need at what stage, and often this advice can be obtained for free (our lawyers offer this advice for free).

2. Making sure the terms are relevant to your business

Every business is different. Given this, each business needs original documents so that the specific risks relating to that business can be managed.

I remember a client once coming to us with a terms & conditions that he had copied form someone who was also in his field. The problem was that they operated their businesses quite differently, which meant that using the other person’s terms & conditions was actually putting his business at risk rather than protecting him. It didn’t take much time or expense for him to put in place some appropriately tailored documents. Once in place he expressed great relief and wished he had sourced a lawyer earlier.

3. Mistakes

When you’re copying from other people you have no idea where they have sourced their documents from or whether or not those documents are correct. Take for example some terms and conditions for a psychologist that I reviewed recently. The terms had been copied from California and actually stated in them that the terms & conditions were to be governed by Californian law. Not so helpful since the Psychologist resided in Sydney.

Don’t assume that other business owners have legally sound documents. There is every chance that they themselves have copied someone else and so on. In most instances the terms are probably outdated and incorrect.

In conclusion, whilst we understand the temptation to copy content online, it’s important that you understand the risks associated with doing so. Is your business and everything you’ve worked so hard for worth risking?

If you’d like to find out more or obtain a free consultation for your business, contact us on info@legallyyours.com.au

7 tips to get your business idea off the ground

It is such an exciting experience to start your own business. It is a huge step and there is so much involved. It is common to be completely focussed on implementing your ideas to start making money. But there are also legal matters to consider. Here are our top tips to help you on your way.

1. Are you restricted by a current employment contract?
If you intend to start a new business while still being an employee, it is important to identify whether your contract includes a “Restraint of Trade” Clause. These clauses can restrict you from engaging in other work, starting your own business in the same industry for a period of time, within a certain radius of your employer or both.

Understanding what you can do as a current employee and what you can do after you cease employment is essential because breaching a restraint of trade clause could allow your employer to take legal action.

2. Confidentiality and Conflicts of interest.
Employment contracts may include a clause restricting you from acting in a manner that is in conflict with your employer’s interests. If you wish to remain employed while starting up your own business it is important that you understand what external activities you are permitted to engage in.
Similarly, it is important to comply with your employer’s confidentiality requirements.

Some questions to ask yourself are:
• Is the information publicly available?
• Is the information contained in documents marked confidential or for internal use only?
• If you use it, will it harm your employer?

Breaches of these clauses may result in your employment may be terminated and potentially being sued for damages by your employer.

3. Does your employer actually own any IP?
You should also consider whether your employer owns any intellectual property that you wish to use. While something may have been your idea or creation, if you had that idea in the course of your employment, your employer may actually own it. This can occur regardless of whether your employer has implemented, created or used it.

4. Research whether anyone has a registered trademark or patent
It’s also important to consider whether anyone else holds intellectual property rights over any intellectual property that you intend to use. Even if the owner has not used or developed the intellectual property there are restrictions on using a registered property that is subject to a registered trademark or patent.

5. Be mindful of Copyright
Copyright is another form of protecting intellectual property. If you wish to protect material that you create, you can do so by using the © symbol with your name and the year the material is produced. Copyright is free and applies automatically when material is created. Copyrighted material can be used without reference or permission if certain requirements are met, however the test is not a simple one.

6. Registering a Trademark
Protecting your brand is important. You should consider registering your trademark quickly as the process can take several months! Trademarks can be registered over words or phrases, font and logos and extends to the industry and associated industry in which a business operates.

7. Similar names restrictions apply, find an available business or company name: they can be reserved until you decide upon your structure
Choosing a name that is a true reflection of your business can be tricky at best, let alone if you don’t check whether it is already taken! The name you operate under (if it’s not your own name) must be registered through a company or as a business name with the Australian Securities and Investments Commission (ASIC). Once a name is taken, it cannot be used again and there are restrictions on using similar names. You can undertake searches of available names for free and it is possible to reserve an available name for future use, while you undertake the rest of your inquiries.

For more information contact Legally Yours on 1300 822 708.
Written by Fiona McCord and contributed to by Mira Stammers, both Legally Yours lawyers.

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