Estate Planning

Wills and Estate Planning

Planning for your future

Wills and Estates Lawyers Cairns

Planning now for your family’s future is an important legal task and making a legally binding estate plan can save your family money and stress in the long run. Miller Harris Lawyers are well versed in advising on the various matters that should be considered in your estate plan.

Estate planning is so much more than simply making a will, therefore seeking advice from an experienced wills and estate lawyer from the outset is critical. The preparation of an estate plan begins with an entire review of the state of your personal, family and business affairs with a view to determining how you want your assets to be dealt with after you pass away.

Whilst a will is a good starting point to implementing an effective estate plan, there are several other issues to be considered, including:

  • Is there a need for more protective measures to safeguard your children’s inheritance?
  • Has your superannuation been effectively dealt with?
  • Who is going to look after your financial affairs and/or personal and health matters if you have lost capacity?
  • Who is in control of your family trusts in the event that you were to lose capacity or pass away?
  • Is there a risk that your will could be contested?

A well prepared estate plan considers your current lifestyle needs, business and tax arrangements, plans for retirement, and details the allocation of your assets in accordance with your wishes.

Our experienced wills and estates lawyers can identify the issues that need to be considered when preparing an estate plan and provide you with the appropriate advice depending on your individual circumstances. We have been helping Cairns and North Queensland residents put their estate plans in order for over 25 years.

Our services

Our Wills and Estate Lawyers offer the following services in Cairns and North Queensland region:

  • assisting you in drafting a will which accurately reflects your wishes;
  • preparing enduring powers of attorney, general powers of attorney and advanced health directives;
  • ensuring that your superannuation is adequately dealt with through the preparation of binding death benefit nominations;
  • providing you with advice, if required, on establishing trusts that suits your individual circumstances, including:
    • testamentary discretionary trusts;
    • special disability trusts; and
    • all needs protective trusts.
  • assisting you in an estate administration if you have been appointed as an executor or an administrator of an estate;
  • applying for a grant of probate or letters of administration (with the will or on intestacy);
  • advising on making or defending a family provision application (i.e. contesting of a will);
  • making applications to Queensland Civil and Administrative Tribunal (QCAT) for guardianship and administration appointment, review or removal; and
  • providing advice on business succession planning.

Making a will in Cairns

Why you should make a will

The loss of a loved one is challenging enough as it is. It can be even harder if that loved one has not clearly set out how their estate is to be distributed. A poorly drafted will often leads to family disputes. Our Wills and Estate Lawyers can assist you by preparing a valid will that clearly sets out how you want your estate to be managed in the event of your passing.

What is a will?

A will is a legal document in which you express, among other things:

  • who is to be the executor of your estate (to manage and control your assets and liabilities after your passing);
  • who is to be testamentary guardian to care for your minor children;
  • who you would like your assets to be distributed to after you have passed away;
  • who you would like to receive special gifts of jewellery or family heirlooms;
  • whether you wish to make a donation to a charity;
  • succession in your business or company;
  • your wishes about burial, cremation and/or other funeral arrangements;
  • your wishes about organ and tissue donation.

Our experienced Wills and Estate Lawyers can draft your will to ensure that your wishes are carried out.

What isn’t covered in your will?

It is important to be mindful that some assets do not automatically form part of a person’s estate upon their passing, such as assets held in a family trust, life insurance and superannuation fund.

Superannuation is not typically an asset of your estate which is covered by the provisions of your will. In order to direct who you wish to receive your superannuation death benefits in the event that you were to pass away, a superannuation binding death benefit nomination must be prepared and appropriately executed and witnessed.

Superannuation binding death benefit nominations must be prepared with care and precision. Drafting a binding death benefit nomination is not as simple as just filling out a form.

The distribution of estate non-assets can be complex and may have significant tax consequences. Our experienced Wills and Estate Lawyers can provide advice on how to best allocate these assets and identify the practical issues that need to be considered.

How to make a valid will?

In order for a document to be a valid will, there are certain elements that must be met along with strict execution and witnessing rules. Our Wills and Estate Lawyers can draft and witness your will to ensure that it complies with the requirements in order to be valid, which will reduce the potential for future challenges.

If a family member has left a will that does not meet the requirements of a formal will then, provided certain elements are met, the Court may dispense with the formal requirements and declare the document to be an informal will. Our experienced Wills and Estates Lawyers can provide you with advice on whether a note, letter or even a text message may constitute an informal will.

The process and costs involved in making an application to the Court to dispense with the formal requirements of a will are often quite significant, which in turn causes delay to the beneficiaries in receiving their entitlements and a reduction in the amount of their entitlements. Therefore, it is always better to have a properly prepared, formal will in place.

How often should you review your will?

In certain circumstances your will (or specific provision(s) in your will) may be automatically revoked, such as when:

  • you marry (and your will hasn’t been made in contemplation of your marriage); or
  • you and your spouse divorce or your de facto relationship or civil partnership comes to an end.

We strongly recommend that our clients review their will on the breakdown of a marriage, de facto relationship or civil partnership. Especially considering, with respect to marriages, the provisions of your will nominating your former spouse as executor and/or provides your former spouse with a gift of your estate, will is not automatically be revoked upon separation, but rather it will only be revoked upon a formal divorce. In Australia, spouses of a marriage are required to be separated for a minimum period of twelve (12) months before applying for a divorce, during this time (before a divorce order is granted) an existing will which appoints your former spouse as executor and/or makes a gift to your former spouse will still be valid.

Our Cairns Wills and Estate Lawyers recommend that your review your will every twelve (12) months, or whenever your circumstances or the circumstances of a person referred to in your will changes, for example:

  • if the family situation of yourself or any beneficiary changes (e.g. marriage, divorce, matrimonial problems, children or further children, de facto relationships);
  • a beneficiary, executor or trustee under your will dies or becomes unable to act;
  • you dispose of any assets that are specifically mentioned in your will;
  • you acquire new significant assets; and
  • you acquire a business or establish a corporate entity, or the structure of that business or entity changes.

Who should you appoint as your executor/s?

The role of an executor is to administer your estate and carry out your wishes as expressed in your will. Your executor will be responsible for calling in your assets, discharging your liabilities and then distributing your estate in accordance with the terms of your will.

When appointing an executor you should consider the age of the person you are appointing. An executor must be at least 18 years old. Many people appoint their spouse, but make provision for an alternative person to be the executor, if their spouse is unable or unwilling to act for any reason. Other common people appointed as executors include children, parents, siblings and trusted friends. When considering who to appoint as an executor, you should bear in mind that the role can sometimes be an onerous and difficult one.

If you do not have a suitable person to appoint or your estate is quite complex then you may consider appointing a professional such as your accountant, financial planner or solicitor. However you should be aware that if a professional executor is appointed, ordinarily they will charge your estate for their services rendered in the administration of your estate.

What happens if you pass away without a will?

If you pass away without a will then you are considered to have died intestate. If you die intestate then your estate will be distributed according to the rules of intestacy as set out in the Succession Act 1981.

The rules of intestacy do not take into consideration your circumstances and relationships at the time of your demise (for example, estrangement from a family member) and therefore may not be in accordance with your wishes.

The best way to ensure that your loved ones are cared for after your passing is to create a will.

Who will administer your estate if you don’t have a will?

In order for an intestate estate to be administered an eligible person would need to apply to the Supreme Court of Queensland for a grant of letters of administration on intestacy to become the administrator of the estate. Generally, an estate cannot be administered if no one has been appointed as the administrator of the estate.

Where there is no will, a legal set of rules are applied to determine who has the highest priority to make an application to be appointed as the administrator of the estate.

If a loved one has passed away without a will then our Wills and Estate Lawyers can assist eligible applicants in making an application to the Supreme Court of Queensland for a grant of letters of administration (on intestacy) in order to deal with the estate of the deceased. More information on applying for letters of administration is available here.

What happens if the executor named in the will has died?

If the executor of an estate has died and there is no alternative executor named in the will, then an eligible person would need to make an application to the Supreme Court of Queensland for a grant of letters of administration (with the will) to become the administrator of the estate.

Again, a legal set of rules are applied to determine who has the highest priority to make the application to be appointed as the administrator of an estate.

If a loved one has passed away without a surviving executor under their will, then our Wills and Estates Lawyers can assist eligible applicants in making an application to the Supreme Court of Queensland for a grant of letters of administration (with a will).

Contesting a Will in Cairns

Family Provision Application

In Queensland a spouse, child or dependant of the deceased who is not left with adequate provision for their proper support and maintenance can contest a will, this is known as a Family Provision Application.

The court in deciding a family provision application will consider a range of factors including:

  • the size of the estate left under the Will;
  • the relationship between the person making the family provision application and the deceased;
  • the support provided to the applicant by the deceased during their lifetime;
  • the financial position of the person bringing the application;
  • any contribution the applicant made to the assets of the deceased; and
  • the standard of living maintained by the applicant.

If you believe that you have been improperly left out of a loved one’s will and would like further information as to whether you are eligible to challenge the will, please contact one of our Cairns Wills and Estate Lawyers. It is important that you seek advice as soon as possible from an experienced Wills and Estates Lawyer as there are strict time limitations that apply.

Time limits that apply for contesting a will

If you wish to contest a will, please note that there are strict time limitations that apply. It is crucial to obtain legal advice as soon as possible after a willmaker’s demise.

Our Cairns Wills and Estate Lawyers can provide you with advice on your eligibility and prospects of success in contesting/challenging an estate.
Alternatively, if you are an executor or administrator of an estate and you have received notice of someone’s intention to contest an estate, our Cairns Wills and Estates lawyers can provide you with advice and assist you with defending the estate.

For more information on making or defending a family provision application, please contact our Cairns Wills and Estate Lawyers.

How to obtain a copy of a Will

In Queensland the following persons are entitled to receive a copy of a deceased will:

  • any person named in the will or a previous will made by the deceased;
  • a spouse, parent or child of the deceased;
  • a person who would be entitled to receive part of the deceased estate if the deceased had died intestate;
  • a parent or guardian of a child of the deceased; and
  • a creditor of the deceased.

The best way to obtain a copy of the will is to contact the lawyers acting for the estate or the executors directly. If you have difficulty in obtaining a copy of the will then our Cairns Wills and Estate Lawyers can assist you.

How to reduce the risk of a will being contested?

Our Cairns Wills and Estate Lawyers can provide you with advice, tailored to your individual circumstances, on ways to reduce the likelihood of your estate being the subject of Court proceedings.

If you are concerned that someone you have excluded from your will may try to contest your wishes, then we recommend that you contact one of our experienced Cairns Wills and Estates Lawyers to discuss your concerns and implement a strategy to reduce this risk.

Enduring powers of attorney, general powers of attorney and advance health directives

A power of attorney is an important legal document which appoints another person to make legally binding decisions on your behalf.

An advanced heath directive sets out your directions about medical treatment that you require in the event that you are incapable of making decisions about your own healthcare. An advance health directive also allows you to appoint an attorney for personal and health matters.

What is the difference between a general power of attorney and an enduring power of attorney?

General Power of Attorney

A general power of attorney is a legal document used to appoint a person to make financial decisions on your behalf while you have capacity.

A general power of attorney is often used if, for example, you will be unreachable or unable to conduct your financial affairs for a period of time, such as when you are away overseas.

A general power of attorney can be revoked at any time, provided that you have the capacity to do so.

Enduring Power of Attorney

An enduring power of attorney is a legal document which appoints a person to make financial and/or personal/health decisions on your behalf. “Enduring” simply means that the power will continue if you lose capacity and are unable to make those decisions for yourself.

Examples of financial decisions your attorneys can make on your behalf include:

  • accessing your bank accounts to pay your bills; or
  • facilitating the sale of your home (for example, if you needed to move into a nursing home).

Examples of personal/health decisions your attorneys can make on your behalf include consenting to medical treatment, deciding where you live (for example, if it is more appropriate for you to live in a retirement or nursing home).

With respect to personal/health decisions an attorneys power can only come into effect upon loss of capacity. With financial decisions however, you can nominate a time upon which your attorney’s power is to begin (and that power will continue if and when you lose capacity). For example, you could nominate the power to begin immediately or upon an event, like loss of capacity.

When you are considering who to appoint as your attorney, you should bear in mind that, once your enduring power of attorney becomes active, your attorney will have the power to handle and conduct your affairs as you otherwise would be able to. Therefore, it is extremely important to appoint someone you trust to be your attorney.

Our team is able to draft any terms that you require to govern your attorney’s powers, including stipulations as to how they are to manage your affairs.

Who should have an enduring power of attorney?

A person can unforeseeably lose their capacity at any time during their life, either permanently or temporarily.

Our Cairns Wills and Estate Lawyers recommend that any person over the age of 18 prepare an enduring power of attorney.

What is the consequence of not having an enduring power of attorney?

If you do not have an enduring power of attorney in place and you were to lose capacity then a family member or a close friend would need to make an application to the Queensland Civil and Administrative Tribunal (“QCAT”) to be appointed as your administrator for financial matters and/or guardian for personal and health matters.

This process is often stressful and can be costly and one which can be avoided if you have prepared an enduring power of attorney. If your loved one has lost capacity and does not have an enduring power of attorney, our Cairns Wills and Estates Lawyers can provide you with advice and assist you with making the relevant applications to QCAT.

What an attorney is not allowed to do

When drafting your enduring power of attorney, you can elect to place limits on the powers and the decisions which your attorney/s can exercise on your behalf.

There are also statutory limitations imposed on attorneys, including that:

  • your attorney must exercise their powers honestly and with reasonable diligence to protect your interests;
  • your attorney must keep their property separate from yours; and
  • your attorney cannot enter into a ‘conflict transaction’ unless there is an express clause in the enduring power of attorney document which permits your attorney to do so, or the Court has approved the transaction.

A ‘conflict transaction’ is a transaction where the interests of the attorney or a close family or business associate of the attorney conflicts with the adult (who appointed the attorney). Examples of conflict transactions between an attorney and an adult include:

  • the attorney (or someone in a close relationship with the attorney) purchases the adult’s car or house;
  • the attorney (or someone in a close relationship with the attorney) moves into the adult’s home, whilst the adult is residing in a nursing home; or
  • the attorney (or someone in a close relationship with the attorney) obtains a loan from the adult.

If you are concerned that an attorney is misusing their power, please contact one of our Cairns Wills and Estate Lawyers to obtain advice on what steps should be taken.

How to revoke an enduring power of attorney?

In order to revoke an enduring power of attorney a revocation form can be completed or a new enduring power of attorney can be executed. If you make a new enduring power of attorney, the power is revoked to the extent of any inconsistency with your previous enduring power of attorney or advance heath directive.

There are several other circumstances that will bring your enduring power of attorney to an end including:

  1. marriage (unless your new spouse is already your attorney);
  2. divorce (the power of attorney is revoked to the extent that it was given to your former spouse);
  3. if you die;
  4. your attorney withdraws (by giving you signed notice or obtaining leave from the Court
  5. your attorney becomes incapable;
  6. your attorney becomes bankrupt or insolvent; or
  7. your attorney dies.

If you would like to revoke or update your enduring power of attorney, please contact our Cairns Wills and Estates Lawyers to discuss.

Advance Health Directive

An advance health directive is a document in which you express your wishes or directions regarding your healthcare for various future medical conditions or events that may occur. The directive will only apply in circumstances where you have lost the capacity to make your own decisions. The directive also includes current information on the state of your health such as any allergies, conditions etc that are relevant to healthcare professionals that may treat you.

A directive can be quite specific in detail, such as, prescribing a minimum quality of life acceptable to you or what will occur in the event of you becoming terminally ill or suffering severe brain damage or injury.

Any person over the age of 18 can make an advanced health directive, provided they are capable of understanding the nature and effect of the decisions that they are making in the directive.

Testamentary discretionary trusts in Cairns

What is a testamentary discretionary trust?

A testamentary trust:

  • is a trust that is created by the terms of your will;
  • only comes in to effect once you have died, and your estate has been administered; and
  • provides for a range of beneficiaries, in addition to the primary beneficiary, all of whom are discretionary beneficiaries – so that it is up to the trustee of the trust to determine in any particular year who should receive the income or capital of the trust.

Our Cairns Wills and Estate Lawyers can advise you on incorporating a testamentary discretionary trust within your will to suit your family’s individual needs.

There are a number of benefits to a testamentary discretionary trust, including in particular:

  • significant taxation benefits, particularly where any beneficiary is under the age of 18 years; and
  • increased levels of asset protection, particularly in the instance where a primary beneficiary is subject to a bankruptcy or matrimonial breakdown.

The beneficiaries of a testamentary discretionary trust do not have any defined interest or fixed entitlement to the trust assets unless and until the trustee makes a determination in their favour. The beneficiaries merely have a right to be considered and have the trust administered in accordance with the terms of the trust. Therefore, if a beneficiary becomes bankrupt, the assets of the trust will not be property of the bankrupt and therefore available for distribution to creditors (unless the trustee chooses to make a distribution to that beneficiary).

Our Cairns Wills and Estate Lawyers can establish testamentary discretionary trusts in accordance with your family’s individual needs. For more information on how you can utilise and set up a testamentary discretionary trust, contact our Cairns Wills and Estate Lawyers.

Special disability trusts and all needs protective trusts

Special disability trust

A special disability trust (“SDT”) is a special type of trust established by the Federal Government, to allow families of a person that qualifies as having a disability, to pay funds in to a trust for the benefit of the disabled beneficiary, either while they are alive or under the terms of their will.
The benefit of a special disability trust is that the assets forming the special disability trust, up to a maximum of $657,250.00 as at 1 July 2017 (and indexed yearly), are disregarded from the operation of the assets test for the disability support pension. This can be a considerable benefit.

Our Cairns Wills and Estate Lawyers can assist you to prepare the documentation required to give you peace of mind that vulnerable family members will be looked after in the best way possible and their inheritances will be protected.

Protective Trusts

If one of the people who you seek to make provision for after your passing is affected by mental illness, gambling, alcohol or drug addiction or is a spendthrift, then you may wish to create a protective trust which gives the benefit of certain assets of your estate to the beneficiary, but does not allow them to deal with those assets themselves. We can work with you in drafting the trust documents to limit the purposes for which the assets can be applied in order to protect the assets for the benefit of the beneficiary.

Estate administration in Cairns

You do not have to face the process of estate administration on your own. Our Cairns Wills and Estate Lawyers have the expertise and experience to guide you through each step as you manage the estate within the terms of the will. Everyone’s personal circumstances are different and we work closely with you from the outset to define the level of support required and the extent of our involvement.

Estate administration is, for many, a difficult and emotional task which can often be complicated by personal grief, business obligations or family disputes. The executor of a will must comply with various laws and rules that govern the administration of a deceased estate.
Our Cairns Wills and Estate Lawyers understand that seeing a solicitor and handling these affairs, may be daunting. We aim to guide you through the process of administering the deceased estate and obtaining probate (where necessary) with sensitivity.

Miller Harris Lawyers’ wealth of experience in this area provides you with peace of mind as you protect and represent the interests of the estate beneficiaries. Our Cairns Wills and Estates Lawyers adopt a sensitive approach to guiding executors and beneficiaries through the estate administration process.

Grants of probate and letters of administration

“Probate” is the official recognition by the court that the executor has the right to administer the deceased’s estate. The executor of an estate applies for a grant of probate as “proof” that the court is satisfied that the person was duly appointed under the will.

It is not always necessary to apply to the court for a grant of probate. The decision whether such an application is necessary is often determined by the type of assets held by the deceased.

The steps involved in applying for a grant of probate or a grant of letters of administration (on intestacy or with the will) are complex. Our Cairns Wills and Estate Lawyers can work with you throughout this process and draft all the necessary notices, publications and Court documents.

Construction of wills

Poorly drafted wills (including will kits) create issues for the executors seeking to fulfil the wishes and directions of the deceased. They also create opportunities for the will to be contested.

There has been an increase in construction applications over the years to determine the true meaning of the willmaker’s wishes where the wording in the will is unclear. This is due largely to the number of “homemade wills” or “will kits”.

Our Cairns Wills and Estate Lawyers can help you get your will right the first time, to prevent the risk of your will being taken to Court to have a judge determine the intentions of the willmaker. Construction applications are costly and often very stressful for all parties involved.

The general principles of constructing a will, where the intention of the willmaker is not clear are:

  • words used will be given their ordinary meaning unless a contrary intention appears;
  • the courts will consider what the overall purpose/intention of the will is and interpret the provision consistent with that purpose/intention;
  • specific clauses will be read in the context of the entire document; and
  • the courts may also look at the background and surrounding circumstances that existed at the time the willmaker made the will.

If you are an executor of an estate and you are unsure about the true meaning of the willmaker’s wishes or there is a dispute between beneficiaries about the wording of provisions in the will, please contact one of our Cairns Wills and Estates Lawyers to discuss.

QCAT guardianship and administrator applications

If one of your family members has lost the capacity to make their own decisions and has not made an enduring power of attorney, then you are able to apply to the Queensland Civil and Administrative Tribunal to be appointed as an administrator to assist your loved one make financial decisions.

The decisions that the Tribunal may authorise an administrator to make include:

  • buying, selling and maintaining property;
  • payment of bills;
  • making business decisions; and
  • managing investments.

The tribunal may also appoint a close family member to be a guardian. A guardian can only make non-financial decision which include:

  • where the adult will live;
  • what support services they receive; and
  • general healthcare decisions.

The tribunal will only appoint an administrator or guardian if satisfied that the person who they will represent has lost capacity and that there is a need for someone to make certain decisions for that person.

The law imposes quite extensive restrictions and requirements on those acting in the position of administrator or guardian. If you would like more information on how to apply to become a guardian or administrator for a loved one; or your responsibilities after appointment, please contact our Wills and Estate Lawyers who can assist you throughout the process and in making an application to the tribunal.

If a loved one has an enduring power of attorney in place and you believe their attorney is abusing or misusing their power, an application can be made to QCAT for the review and removal of an attorney.

Our Cairns Wills and Estate Lawyers can assist you with a QCAT application to reduce the stress and make the process somewhat easier.

Elder Abuse

Elder Abuse is a serious issue that affects many people living in Australia.

Elder abuse is any act which results in harm to an older person and includes emotional, psychological, financial, physical or sexual abuse and neglect.
Financial exploitation of the elderly by their attorneys is just one aspect of elder abuse which is an increasing problem in society and, surprisingly, not always obvious to the perpetrator.

The problem of elder abuse is of increasing concern as in the coming decades a large proportion of Australia’s population will be older. In 2050, just over a fifth of the population is projected to be over 65 and those aged 85 and over are projected to represent about 5% of the population.
Support services are available in Queensland and include the Elder Abuse Prevention Unit who can be contacted on 1300 651 192.

Our Cairns Wills and Estate Lawyers are experienced in understanding the signs of elder abuse and can work with our clients to ensure they receive the support they need to get help.

Please contact our Cairns Wills and Estates Lawyers immediately if you are concerned that someone (family member, friend or even your neighbour) is being subjected to elder abuse.

 

We offer legal advice and services for:

Wills

Planning now for your family’s future is an important legal task. Making a legally binding will and testament can save your family money and stress as they deal with your affairs after your passing. Miller Harris Lawyers can advise you on the various matters that should be considered in your will and can prepare and hold the necessary documentation.

Powers of attorney

There are a variety of circumstances such as international travel, age, sickness or accident, which may render you unable to control your financial affairs - either now or in future. An important component of planning your estate, is creating a power of attorney that appoints a person to act for you to do certain financial things on your behalf when circumstances require.

Enduring powers of attorney

An enduring power of attorney continues to be legal even if you are unable to make these decisions yourself. This means that someone you choose, can take control of your financial and legal affairs if you ever lose capacity.

Superannuation including self-managed superannuation funds

Superannuation is another important part of your estate that should be allocated as part of your estate plan. Miller Harris Lawyers can help you understand your options for accessing and distributing your superannuation before or after your death.

Family trust succession planning

Assets held in family trusts are not owned by parents and therefore, cannot be dealt with in a will. Distribution of these funds can be complex and have tax consequences. Miller Harris Lawyers’ experienced estate planning team can provide advice on how to best allocate these funds and the practical issues that need to be considered.

Testamentary trusts

A testamentary trust is established under a will but, does not come into effect until after the death of the will-maker. Our estate planning team can advise you on incorporating a testamentary trust within your will to provide significant flexibility along with asset protection and tax minimisation for those who will benefit from your estate.

Business succession planning

An often overlooked component that must be considered when developing an estate plan, is business commitment or venture. Succession planning should be a key part of the business strategy but, is equally an important consideration when planning for the distribution of your estate.

Meet the experts in
Wills and Estate Planning

Sean Walsh

Partner

Sean is an experienced business and commercial lawyer, having practised exclusively in these areas for almost 30 years.

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more about Sean

Bianca Stafford

Associate

Bianca is a commercial lawyer with a broad range of experience in wills and estates, probate and estate administration, and estate dispute resolution.

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more about Bianca