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Choosing a Lawyer
Choosing a lawyer is not an easy task, particularly if you don’t know one personally. Not every lawyer is right for you or your needs. We each have different personalities, working platforms and approaches to the law – we are humans too. It is important that you not only find the right lawyer for your needs but also for who you are as a person. How then do you go about choosing the right lawyer?
- Ask for a recommendation. Ask your friends, family, work colleagues. Recommendations are a great way to find a lawyer who suits your problem and who you are as a person. Or, contact us and we’ll help you
- Interview the lawyers prior to engaging them. It’s your hard-earned money that you will be paying this lawyer to assist you in achieving your outcome. Talk to the lawyer who will be handling your matter, ask them the hard questions that are important to you. They will want your business so should be willing to answer any question you throw their way no matter how out of left field it may seem to you. Also, you don’t have to pay for this service, they are trying to win your business – you aren’t trying win theirs. We will happily sit down with you for a coffee so that you can get a feel for who we are and why we can help you with your problem
- Research the lawyer. Check out their website, LinkedIn, social media, Google them. Sometimes there may not be that much information publicly available which is ok; it just means you will need to interview them more thoroughly
- Ask the tough questions, particularly about your legal costs. Lawyers are required to disclose to you the fees they charge and how they charge them. You are also able to negotiate these fees with the law firm (although they don’t need to agree to your suggested changes). If anything is unclear, then ask the question – it’s the easiest way to find the answer. If you have a particular budget explain this at the outset so that your lawyer can work with you and your budget to achieve your results
- Don’t be afraid to choose a different lawyer. Not every lawyer is right for you or your situation. You need to be confident that you are in the best hands for you and your problem. Remember, it is your life and your hard-earned money that is paying for a lawyer to help you. So it’s important you have the right lawyer for you
Engaging a Lawyer
So, you have a problem and have chosen your lawyer. Now you need to engage them. How can you make this as painless as possible? Here are our top 5 tips:
- Be organised. If you can collect all of the relevant documents, emails and information that you have in your possession and put it in a chronological order you can save time and money in providing your lawyer with a complete documentary picture of what occurred.
- Tell the story logically. Spend some time before seeing your lawyer preparing the story as to what has occurred. This should be an accurate, unemotional version of the story which deals with both your strengths and weaknesses. A good way to do this is to work chronologically from the beginning of the issue and then addressing at least:
- Who was involved
- What happened
- When did it take place
- Where did it take place
- Why did it happen
- How did it happen
- Stick to the facts. Ultimately in any dispute a court is going to make a decision based on the facts. The court is only concerned with the objective facts which occurred in the dispute and will generally not entertain the subjective and emotional side of any dispute. The clearer you are on the facts of what actually occurred the easier it will be for your lawyer and the less money it will cost you. This does not mean that how you feel about the situation is unimportant, rather how you feel is not a direct consideration in the eyes of the court
- Be honest and open with your lawyer. Generally everything you say or communicate to your lawyer where the dominant purpose is to obtain their legal advice will be protected by legal profession privilege. This means that it cannot be disclosed unless there is a waiver of the privilege or the information is not confidential in nature
- Be clear on what outcome you want. This is not an easy question, but it is the important one. Lawyers are generally very skilled individuals who can assist you to achieve a wide variety of outcomes but not every outcome is right for you and not every outcome can be achieved. It is important that you communicate clearly with your lawyer your desired outcome so that the lawyer is able to work with you to achieve that outcome, or where it is not able to be achieved, work within the relevant legal framework to achieve the best possible outcome for you
Whether you are owed money, or you owe someone money, the usual first step is for a demand for payment to be issued. This can take a number of forms, a letter/email from the person/company owed money to begin with, a letter from a lawyer, a Creditor’s Statutory Demand in the case of a company, or even just the commencement of court proceedings. Regardless of its form, the best step is not to ignore it. Ignoring it will only result in another, escalated, step being taken and that will make things more difficult and costly. But what to do next? Well this is a tricky question but there are some simple tips you can employ:
- Talk to the person (regardless of whether you owe the money or are owed the money). By talking to the person, you can usually ascertain what the issue with payment is. It may be that there is a dispute about the amount, or that they may just need more time to pay. You won’t know unless you are having the discussion. You do however need to be careful in any discussion not to make any admissions that may harm you later if you can’t resolve the issue. We have some neat tips on how to handle this in our ‘Without prejudice discussion’
- Write to them (or their lawyers) if you can’t talk to the person or they won’t take your calls. This can be done with or without your own lawyer (we always recommend you speak with a lawyer first though). In writing to them you should clearly and concisely set out your position or response in respect of the money owed. If you are unsure, give us a call and we can help you craft an appropriate response
- If you are still not getting anywhere then it might be at the stage where you need to engage a lawyer or to start court proceedings. Give us a call and we can help you make this assessment and assist you with the issue moving forward
When a dispute arises, a common step is for one of the wronged parties to commence proceedings in a court or tribunal to ask for an independent determination of the dispute. This can take a number of forms depending on which court or tribunal the claim is commenced. In Queensland this is generally called a Claim. A Claim is also usually accompanied with a Statement of Claim.
If you are served with a Claim and Statement of Claim, or any other court process, you should not ignore it! There are strict timeframes for which responses to court proceedings must be adhered to. A failure to adhere to these strict processes can result in the Court entering judgment against you.
Which Court is Right?
Where should you start or bring your proceedings? This really depends on what your proceeding is about as each court has their own jurisdiction or area of law which they deal with. We can advise you on the appropriate jurisdiction to bring your proceeding.
In Queensland for example there are five main civil courts:
- Queensland Civil and Administrative Tribunal (QCAT) which deals with guardianship for adults, antidiscrimination, building disputes, children’s matters, dividing fences, tree disputes, residential tenancy disputes, other civil matters and debt disputes up to $25,000. QCAT is generally a no costs jurisdiction which means that a party is not usually entitled to be reimbursed for their legal costs if they are successful
- Magistrates Court of Queensland is the first level of court jurisdiction in Queensland. It deals with civil disputes with a monetary claim of up to $150,000. If it is less than $25,000 you can bring the claim in QCAT however you may not receive a reimbursement of your legal costs if you are successful
- District Court of Queensland is the second level of court jurisdiction in Queensland. It deals with civil disputes with a monetary claim from $150,001 – $750,000
- Supreme Court of Queensland is the highest court in Queensland and hears civil disputes with a monetary claim over $750,000 and has unlimited jurisdiction in dealing with Queensland disputes. It has two divisions, the trial division which hears cases started in the Supreme Court and the Court of Appeal which hears appeals from decisions made in the District Court and Supreme Court (trial division). The Supreme Court of Queensland also holds Federal jurisdiction where it is vested or granted by the Commonwealth
- High Court of Australia is the apex court and the highest court in Australia. In addition to its Federal Jurisdiction, it is the final court for determining appeal against the decisions of the Supreme Court, Court of Appeal. There is no automatic right of appeal and you must persuade the court that there are special reasons why the appeal should be heard. There are no further appeals once a matter is decided by the High Court and all its decisions are binding on all of the other courts in Australia
Federally, there are three main civil courts which can hear your matter and they can (with the exception of the High Court) only hear matters which come within the powers of the Federal Government (i.e. they have no state jurisdiction):
- Federal Circuit Court of Australia is the first level of the Federal court system and has jurisdiction across areas such as administrative law, bankruptcy, consumer matters, privacy, and intellectual property. The Court can provide injunctive relief and award damages up to $750,000
- Federal Court of Australia is the second level of the Federal court system and has two divisions being the Federal Court (a single sitting judge) and the Full Federal Court (comprising three or more judges). It has original jurisdiction under Commonwealth legislation in matters relating to Corporations, bankruptcy, intellectual property, taxation and competition, among others. It is also the appeals court for decisions made in the Federal Circuit Court of Australia, excluding family law which is the jurisdiction of the Family Court of Australia. The Full Federal Court is the appellate jurisdiction of the Federal Court of Australia hearing appeals from decisions of the Federal Court of Australia
- High Court of Australia is the apex court and the highest court in Australia. In addition to its State Jurisdiction, it is the final court for determining appeal against the decisions of the Full Federal Court of Australia. There is no automatic right of appeal and you must persuade the court that there are special reasons why the appeal should be heard. There are no further appeals once a matter is decided by the High Court and all its decisions are binding on all of the other courts in Australia
Disputes are a regular part of business. Not everyone agrees all the time but how you deal with that dispute is important to the survival of your business. We can assist you with a wide range of dispute resolution options including:
- Formal and informal Settlement conferences
- Early Natural Evaluations
- Expert determinations
If you receive a notice from the Australian Taxation Office which relates to you, or your business affairs don’t ignore it! You should read it carefully and take immediate action. We can assist you throughout the process. We work closely with you and your accountant to assist you to comply with your taxation obligations.
Alternative Dispute Resolution, Negotiation, Mediation and Settlement conferences
If litigation is not for you, we can assist you with other methods to resolve your dispute, for example:
- Formal and informal settlement conferences
- Early Natural Evaluations
- Expert determinations
Debt can be a difficult thing to manage. But there are many options available to you if you are financially struggling and unable to pay your debts. If you are receiving letters of demand in the mail from lawyers or debt collectors, or worse, a court proceeding, don’t ignore it, they aren’t going away and ignoring it is only going to escalate things and possibly make it worse. You need to open a dialogue with your creditors early so that they are aware of why you are not paying your debts. Most people and business are understanding and willing to work with you to have the debt paid. If they aren’t or if things have gotten too far to have these discussions, DON’T IGNORE IT, get some legal advice. Check out our section on demands and without prejudice communications for more information on how to open the dialogue with your creditors.
Without Prejudice Communications
Without prejudice communication is an effective way to attempt to settle a dispute. When you are genuinely attempting to resolve a dispute, without prejudice communication allows you to speak freely and openly without the risk that what you say can be used against you in the future. This allows you to make concessions or admissions to attempt to resolve the dispute.
Simply stating or writing “without prejudice” is not enough on its own to protect you however; such protections are only enlivened where you are engaging in a genuine settlement negotiation or attempt to resolve an ongoing dispute or legal proceeding. It can even apply where you don’t state that it is “without prejudice” but we would recommend that you do anyway to avoid any doubt as to the context. It is important to note that “without prejudice” protection will generally not apply to parties engaged in commercial negotiations where there is no dispute.
Where you are involved in a genuine attempt to resolve a dispute we recommend the following approach:
- You expressly state that the communication is “without prejudice” at the beginning of the communication. A great way to do this in writing is to write the words at the top of the correspondence in bold… for example simply writing “without prejudice”. If dealing with someone in person or on the phone, you can say for example “can we please speak without prejudice” and having them agree
- When verbally communicating with someone, the other person should expressly agree to the communications being “without prejudice”. If they don’t agree then we recommend not having the conversation with them as any admission or concession you make may be held against you. If you are unsure, contact us and we can help
- If you feel uncomfortable at any stage during the communication, you are at liberty to end the conversation
- Take detailed and accurate notes at the time of the communication or as soon as possible thereafter. This helps in the future if there is ever a dispute over what was said as a contemporaneous note will usually be of greater evidence weight than simply your recollection alone
Receiving a Creditors’ Statutory Demand
If you’ve received a Creditors’ Statutory Demand do not ignore it as they have very strict timelines. You only have 21 days from the date of service (this does not necessarily mean the day you receive it either) by which time you must either pay the demand or bring proceedings to have it set aside. The consequences of ignoring the Creditors’ Statutory Demand can result in your company being wound up and a liquidator appointed. This may mean you could lose your ability to run your business and lose your ability to generate income.
Issuing a Creditors’ Statutory Demand
If a Company owes you or your business more than $2,000 you may be able to issue them with a Creditors’ Statutory Demand. A Creditors’ Statutory Demand is a formal demand for payment of a debt that requires the Company, within 21 days of service of the Creditors’ Statutory Demand, to either pay the demand or bring proceedings to have it set aside. If the demand remains unpaid (and proceedings have not been brought) the Company is presumed insolvent and can be wound up.
Appointing an Administrator or Liquidator
Whether it’s personal reasons, a natural disaster, a downturn in the economy, you haven’t been paid so you can’t pay your creditors, or some other reasons, sometimes the best option for your company (and you) is to appoint an administrator or liquidator to take over running your company. For example, if you are unable to pay your debts as and when they fall due you may be insolvent and an administrator or liquidator may need to be appointed to your company. If you are insolvent and you continue to trade you may be trading insolvent, in breach of your director’s duties or even committing a criminal offence. We work with a wide range of specialist administrators and liquidators who, along with us, can assist you in making this difficult decision and guide you throughout the entire insolvency process.
As a director of a company you can be exposed to criminal sanctions if you breach the Corporations Act 2001 (Cth) or the Australian Securities and Investments Commission Act 2001 (Cth). We’ve listed some of the main offences below but there are others. Most of these breaches attract significant penalties under the relevant Act as well as their State equivalents.
The main types of offences:
- Failure by companies to file the appropriate returns ASIC
- Failure by directors to disclose any conflict of interest they may have involving transactions of the company
- Improper use of position by a director or officer of the corporation (for example, the secretary) to gain an advantage for her or himself or to a person other than the corporation
- Dishonest conduct on the part of a director or officer of the corporation with respect to the discharge of her or his duties
- Managing a corporation whilst disqualified from doing so under the Corporations Act
- Misleading or false statements by promoters of companies to potential investors or failure to disclose information in accordance with the Corporations Act requirements
- Share hawking by an unlicensed person
- Failure of a securities or investment adviser to act honestly and in the best interests of the client
- Market manipulation in relation to securities traded on the Australian Stock Exchange
- Insider trading, that is dealing in securities whilst in possession of price sensitive information that is not generally available
Corporations Act Public Examinations
A liquidator of a Company can, as part of their investigations of the insolvent company, conduct a public examination of the Company’s affairs. If you are served with a summons you can be required to attend court to produce documents or give evidence under oath in front of a Judge or Registrar about the affairs of the company. You must, except in limited circumstances, answer the questions asked even if they could incriminate you or will make you liable for a penalty; it is an offence not to do so. If you are served with a summons you should immediately seek legal advice. We can assist you throughout the entire process providing you with the necessary legal advice to navigate the examination process and protect you and your interests.
Your company can be wound up and a liquidator appointed for a number of reasons including:
- You voluntarily appointed a Liquidator
- Your company is insolvent and can’t pay its debts as and when they fall due
- You failed to pay or set aside a Creditor’s Statutory Demand and the creditor applied to the court to wind your company up
- Your company was in Voluntary Administration and creditors voted to wind the company up and appoint a liquidator
- Your company didn’t commence business within one year of incorporation or you suspended the company’s business for a whole year
- The company has no shareholders or members
- The directors have acted in their own interests rather than for the company as a whole including conducting the affairs of the company in ways which are oppressive against a shareholder or shareholders
- The Court forms an opinion, based on an application, that it is just and equitable that the company be wound up
It is important that you are actively involved in the management of your company and you comply with your duties and the law. If your company is experiencing financial difficulty or if you are concerned that your company might be insolvent you should act immediately.
A winding up of your company does not mean that you can just pack up and walk way. Once a liquidator is appointed they are obligated to investigate the company’s affairs. Liquidators have a broad range of powers and tools at their disposal including:
- Conducting public examinations about the company’s affairs. This means that you will need to attend court and give evidence in front of a Judge or Registrar about the affairs of the company
- Bringing proceedings against people who received money from the company during the relation back period (usually the period of time in the six months prior to the date the winding up is taken to have become). This is known as a preference payment and can result in you having to pay all of the money back, even if you were legally owed the money. This short period only applies to non-related person; if you, one of your companies, your family or your spouse’s family, or anyone the Corporations Act 2001 (Cth) considers is a “related entity”, a Liquidator can, in certain circumstances, attack and seek to recover any payments made in the previous four years, and in certain circumstances this period can be up to 10 years
- Suing you as a director for a range of things including breaches of director’s duties; uncommercial transactions; conflict transaction; insolvent trading; unfair preferences (see above); unfair loans and many other things
- Reporting any offences to the Australian Securities and Investments Commission (ASIC) who may investigate and prosecute you
Sometimes despite the best of your ability things don’t work out and mistakes are made, and we understand that. Even if you are acting in good faith you can find yourself receiving letters from Liquidators or their Lawyers or even getting served with Court proceedings. The best thing is to act early and seek legal advice.
Director Penalty Notices – PAYG and Superannuation Guarantee Obligations
As a company director, you must ensure that your company withholds money from your staff’s wages to meet your staff’s income tax liabilities to the Australian Taxation Office (ATO) as required under the Pay As You Go (PAYG) withholding system implemented under the Income Tax Assessment Act 1997. You must also ensure that your company meets its superannuation obligations for its employees and the ATO including payment of its superannuation guarantee charges (SGC) implemented under the Superannuation Guarantee (Administration) Act 1992. If your company fails to meet its obligations (including its reporting obligations) you can be held personally liable for these amounts.
You may receive a notice from the ATO called a Director Penalty Notice (DPN) which requires you to take certain steps otherwise you will be deemed to be personally liable for the PAYG and SGC debts of the company. Don’t ignore this! There are immediate steps you can take to protect yourself personally from becoming liable for these debts. This will only apply if you are otherwise fully compliant with your PAYG and SGC obligations, including reporting obligations. If you are not otherwise fully compliant you may be automatically personally liable for these amounts. There are a number of defences which may be available to you if you are served with a DPN. One of the main defences available are that the director took all reasonable steps to ensure:
- The company complied with its obligation, that is, to pay the debt
- An administrator was appointed over the company; or
- The winding up of the company had begun, or
- There were no reasonable steps they could have taken to ensure that any of the above occurred
As a company director you have duties and obligations which must be adhered to and complied with. These duties are owed to the company, its members (shareholders) and creditors. The main duties are:
- Care and Diligence: the duty to exercise your powers and duties with the care and diligence that a reasonable person would have which includes taking steps to ensure you are properly informed about the financial position of the company and ensuring the company doesn’t trade if it is insolvent
- Good Faith: the duty to exercise your powers and duties in good faith in the best interests of the company and for a proper purpose
- Improper use of position: the duty not to improperly use your position to gain an advantage for yourself or someone else, or to cause detriment to the company
- Improper use of information: the duty not to improperly use information obtained through your position to gain an advantage for yourself or someone else, or to cause detriment to the company
- Not to trade insolvently
- To keep books and records
Other duties can arise in certain circumstances and we are well placed to advise you in respect of all duties which are owed by a director or officer of a company.
Consequences of breaching your directors’ duties
If you breach your directors’ duties, there can be very serious consequences both for you personally, and your company such as:
- Criminal Sanctions: it can be a criminal offence under the Corporations Act 2001 (Cth) to breach your duties which can result in imprisonment if the offence is serious enough
- Civil Sanctions: the court can order you to pay a very substantial fine for breaches of your directors’ duties. Shareholders, creditors and other affected parties can also commence actions against you as a result of your failure to comply with your director’s duties
- Disqualification: the Australian Securities and Investments Commission has the power to disqualify you from being a director or secretary of a company for long periods (including permanently) as a result of a failure by you to comply with your directors’ duties
- Commercial consequences: one of the most common (and sometimes the most serious consequence) of breaching your directors’ duties is that you can severely and sometimes irreparably destroy both the reputation of your company and the commercial viability of your company. And, there is a risk that you, and your company, will be subjected to increased scrutiny by both your shareholders, regulators and your creditors. You may also cause your company to become insolvent and to be wound up as a result of your breaches of duty
Company Books and Records
In order to properly manage your company and comply with your duties under the Corporations Act 2001 (Cth) your company must keep adequate financial records which correctly record and explain the transactions which your company has undertaken, the company’s current and historical financial position and performance.
As a director of a company you have a duty to ensure that your Company fully complies with this requirement. A failure to do so is a breach of the Corporations Act 2001 (Cth) and your company can be presumed to be insolvent for the period which adequate books and records were not maintained.
If someone owes you or your business more than $5,000 you may be able to issue a Bankruptcy Notice to that person. A Bankruptcy Notice is a formal Government issued demand for payment of the monies you are owed based upon an order or final judgment that’s less than six years old. If the person does not pay you back within 21 days from when we serve them with it you can ask the Court to “bankrupt” them by placing their estate in the hands of a Bankruptcy Trustee who can then sell most of their assets to try to get you your money back.
If you’ve been served with a Bankruptcy Notice don’t ignore it. You only have 21 days from the date of service (this does not necessarily mean the day you receive it either) by which time you must either pay the debt stated in the Bankruptcy Notice or apply to the Court to seek to have it set aside. If you don’t do this, you may have committed an act of Bankruptcy. The consequences of ignoring the Bankruptcy Notices can be very serious and can result in you having a bankruptcy trustee appointed to manage your affairs. This could mean that you have to sell your home, your car, and even surrender your passport, among many other things.
Appointing a Bankruptcy Trustee
So, you’re thinking of appointing or have already appointed a bankruptcy trustee. We work closely with a wide range of highly skilled Bankruptcy Trustees and can assist you with your bankruptcy, debt or other insolvency matters. We understand that this is a difficult time in your life but we can help you navigate the difficulties that can arise prior to or during your bankruptcy.
If you are a Bankruptcy Trustee, we can help you as well. Trustees need good quality practical advice delivered effectively and efficiency throughout the course of the Bankruptcy process. We can advise you along the entire bankruptcy process or just a specific part of it.
Bankruptcy Act Public Examinations
A trustee in bankruptcy of a person’s bankrupt estate can, as part of their investigations of the bankrupt’s affairs, conduct a public examination of the Bankrupt’s affairs. If you are served with a summons you can be required to attend court to produce documents or give evidence under oath in front of a Judge or Registrar about the affairs of the Bankrupt. You must, except in limited circumstances, answer the questions asked; it is an offence not to do so.
If you are served with a summons you should immediately seek legal advice. We can assist you throughout the entire process providing you with the necessary legal advice to navigate the examination process and protect you and your interests.
Are you involved in a Partnership?
A partnership is a business structure where two or more individuals agree to jointly run a business together. When going into partnership, or adding a new partner, it is important to make sure that you have the necessary documentation in place to allow you to effectively run the partnership, including dealing with how to leave the partnership or deal with disputes that arise. We always recommend that you have a formal partnership agreement drawn up by a suitably qualified lawyer and that you obtain your own independent legal advice. Spending a relatively small amount of money upfront to have a lawyer prepare you an effective partnership agreement can save you tens of thousands (or even hundreds of thousands) of dollars if things go wrong.
Tax and Government Debts
If you have a debt to the Australian Taxation Office or other government body, you should take immediate steps to address it. In certain cases, even if you the dispute the debt you may still have to pay it before you can challenge it. The Australian Taxation Office and other government bodies can charge very high interest on debt (usually more than 10% per annum) as well as hefty penalties. We can assist you throughout the entire taxation process. We work closely with you and your accountants to respond to the Australian Taxation Office or other government body to address the issues which arise and protect your interests.
Your Will is one of the most important documents you will sign in your life. Your Will is an express record of your wishes regarding your possessions and estate once you have died. If you do not have a Will when you die it can make things very expensive and difficult for your family to administer your estate. You also won’t have a say in who administers your estate or who receives your assets.
Enduring Powers of Attorney
Like a Will, an Enduring Power of Attorney is one of the most important documents you will sign in your life. An Enduring Power of Attorney is a legally binding statement of who you appoint to deal with your health and personal wellbeing if you are unable to do so.
The person or people you appoint will be responsible for making all decisions, including, but not limited to, where and with whom you live, whether you work or undertake education or training, whether you apply for a licence or permit, day-to-day issues like diet and dress, and whether to consent, refuse to consent or withdraw consent to particular types of health care for you (such as an operation), among many other things. Without an Enduring Power of Attorney, it is possible that the decisions regarding your personal and health matters could be made by a Court or government body rather than by the people you trust most.
An Enduring Power of Attorney can also grant your attorney the power to deal with your financial affairs either immediately or when you lose the capacity to do so. If you are away on holiday, overseas on a business trip, or need to grant someone financial powers for a particular ongoing reason then an Enduring Power of Attorney will be able to assist you in continuing on as usual while your life is anything but.
Your loved one has died and does not have a Will
It is important that everyone have a Will. We understand that not everyone has a Will and this can make it difficult for you to administer their estate as there is no formal document appointing you as the executor of the Estate and you will need the permission of the Court to deal with their assets. We can assist you by asking the Court to grant you powers to administer your loved one’s estate and to determine how the estate should be administered.
Dealing with the death of someone you care about can be a difficult process, both personally and legally. Being the executor of your loved one’s estate is a large responsibility and there are duties which you must follow in administering the estate.
As part of being the executor of a Will you are required to locate all of the assets of the Deceased and distribute them to the beneficiaries in accordance with the Will. You will also be responsible for cancelling the Deceased’s services, licences, passports and bank accounts among other things.
We can assist you by helping you with the proper administration of your loved one’s estate.