COVID-19 - Updates, Webinars and Resources

Do you need help with Probate?

Our expert legal team is ready to take your call

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

Quite often, purchasers will request that the Contract be made conditional upon completing a building and/or pest inspection. However, this does not simply allow the purchaser to obtain a report and then decide to terminate the Contract because they may no longer like the property or are suffering from buyer’s remorse. Therefore, it is crucial that both vendors and purchasers are aware of their respective rights under these special conditions.

What to look for in these special conditions?

Generally, the vendor and purchaser should both be aware of the following in relation to these conditions:

  • How long does the purchaser have to complete the inspection and obtain the relevant report?
  • Who is permitted to undertake the inspection?
  • What must be included in the final reports after the inspection to enable a purchaser to terminate the Contract?
  • How must the purchaser notify the vendor if they are purporting to terminate the Contract?
  • How do these conditions operate for property sold at auction?

All of these points are critical to understand when entering into contracts that may be conditional upon the purchaser obtaining a building and/or pest inspection.

How long does the purchaser have to complete the inspections?

Commonly, the amount of time given to the purchaser to complete the inspections becomes a negotiation between parties. Ultimately, the purchaser should leave enough time to complete the inspections, however it is in the vendor’s best interest for the Contract to become unconditional as soon as possible after signing.

Who is permitted to undertake the relevant inspections?

Ordinarily, many special conditions concerning building and pest inspections will require the individual conducting the inspection to possess a requisite level of qualifications. For example, many building inspections must be completed by a registered building practitioner. You may be able to confirm the status of the builder’s registration by searching for them on the Victoria Building Authority website. It is important to note who is undertaking the inspections prior to paying someone to complete them.

What must be included in the final reports to permit the purchaser to terminate the Contract?

It is very important that you understand this aspect of any special condition concerning building and pest inspections. For example, a special condition may require the building to contain major structural defects before a purchaser can terminate the Contract. Purchasers should seek advice about whether a defect could be structural prior to attempting to exercise any rights under the Contract.

Therefore, even if the registered building practitioner lists defects within their final report, this may not automatically entitle a purchaser to terminate the Contract. Similarly, a pest report may require evidence of pest infestation before a purchaser can terminate the Contract. Ultimately, should a purchaser receive a report and not understand its content, it is crucial that they liaise both with the inspector and a qualified legal practitioner to assist with its interpretation.

What should a purchaser do if the report contains sufficient grounds to terminate the Contract?

Generally, should a building or pest report contain information which permits the purchaser to terminate the Contract, the purchaser should immediately consult with their legal practitioner to ensure the Contract is terminated correctly and in a timely manner. The Contract itself will generally specify the precise method required to terminate.

How do building and pest inspection special conditions operate if the property is sold at auction?

The short answer is they do not operate at all. Property sold at auction does not permit the contract to be conditional upon completing building and/or pest inspections after auction day. Therefore, should you be contemplating bidding at an auction, it would be prudent to organise these inspections prior to auction day.

How can Sharrock Pitman Legal assist?

As Accredited Property Law Specialists, Sharrock Pitman Legal can assist both vendors and purchasers in ensuring that their respective contractual rights are preserved. Should you be contemplating buying a property and require further advice regarding these clauses, please contact our Accredited Specialist Property Law team on 1300 205 506 or alternatively fill in the contact form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Ben Drinkwater

For further information contact

Andre Ong

Andre is a Principal of Sharrock Pitman Legal.

He heads our Property Law Group and is an Accredited Specialist in Property Law (accredited by the Law Institute of Victoria).  He also deals with Commercial Law. For further information, contact Andre Ong on his direct line (03) 8561 3317.

More on

Property Law

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers' using the electronic Court filing system. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

Download our FREE handbook "Managing the Dismissal of an Employee"

GET YOUR FREE DOWNLOAD

Enter your details

Thanks for your interest! 

Here's your download:
DOWNLOAD PDF
Oops! Something went wrong while submitting the form.

Download our FREE legal guide to Probates & Estates in Australia

GET YOUR FREE DOWNLOAD

Enter your details

Thanks for your interest! 

Here's your download:
DOWNLOAD PDF
Oops! Something went wrong while submitting the form.

Could your business do with a “health check”?

Fill in our survey about the legal health of your business and get 30 minutes FREE legal advice!

FILL OUT SURVEY NOW

Could your Not for Profit organisation do with a "health check"?

Fill in our survey about the legal health of your organisation and get 30 minutes FREE legal advice!

FILL OUT SURVEY NOW

About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.