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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

Buying and selling a property can be both an exciting and stressful time. We have prepared a checklist for both buying and selling a property to assist you with understanding the processes involved to ensure that your sale or purchase is as smooth as possible.

Checklist: Buying a property

First steps

  • Contact a mortgage broker and/or lender to determine your budget and seek pre-approval for finance (if applicable)

Before signing the Contract

  • Once you find a suitable property, engage a lawyer to provide advice on the Contract and Section 32 Statement
  • Decide on the time-frame you will need until settlement and, if purchasing with another person, decide whether you will own the property as joint tenants or tenants in common (you should discuss this with a lawyer and your lender)
  • Consider making the Contract subject to finance and subject to a building and/or pest inspection (note that these conditions cannot apply if purchasing at auction)
  • Make sure any additional conditions agreed between you and the Vendor are noted in the Contract
  • If you are purchasing a property off-the-plan, there are numerous other factors to take into consideration, which you should discuss with your lawyer prior to signing any Contract
  • Sign the Contract and Section 32 Statement

After signing the Contract

  • Once you have a signed Contract, notify your mortgage broker and/or lender to prepare a mortgage application (if applicable)
  • Speak with your lawyer who will prepare all necessary paperwork and arrange settlement on your behalf
  • Your lawyer will arrange to have your identity formally verified (Verification of Identity) as a measure that assists with reducing fraud, and will also have you complete a Client Authorisation, which authorises for your lawyer or conveyancer to complete the transaction on your behalf through PEXA
  • Your lawyer should lodge a protective Caveat over the property to record your interests on Title up until settlement has completed

Prior to settlement

  • Contact utility providers to arrange connection to your new property
  • Contact an insurer to insure the property (some banks will make this a requirement prior to settlement)
  • Contact a removalist (if necessary) and ensure they are a member of the Australian Furniture Removers Association
  • Contact the real estate agent to arrange a final inspection before settlement

After settlement

  • Once settlement is complete, collect your keys from the real estate agent and you are ready to move in

If you are a first home buyer you may be entitled to various concessions. You should discuss your potential eligibility for these concessions with your lawyer prior to executing any contract.

Checklist: Selling a property

First Steps

  • Engage a real estate agent to sell your property and complete all necessary paperwork
  • Engage a lawyer to prepare your Contract and Section 32 Statement. You will need to disclose various details about your property
  • Sign the Section 32 Statement with your real estate agent
  • Once you have a Purchaser and are satisfied with any additional conditions, sign the Contract

After signing the Contract

  • Your lawyer will seek to have the deposit released to you after the cooling off period
  • Speak with your lawyer who will prepare all necessary paperwork, liaise with your bank (if applicable) and arrange settlement for you
  • Your lawyer will arrange to have your identity formally verified (Verification of Identity) as a measure that assists with reducing fraud, and will also have you complete a Client Authorisation, which authorises for your lawyer or conveyancer to complete the transaction on your behalf through PEXA

Prior to settlement

  • Set up mail redirection with Australia Post for after the settlement date
  • Contact a removalist (if necessary) and ensure they are a member of the Australian Furniture Removers Association
  • Contact utility providers to arrange disconnection on settlement date and arrange final water, electricity and gas meter readings
  • Allow the Purchaser to complete a final inspection before settlement (usually organised by your real estate agent)

On or before the Settlement Date

  • Leave all keys with the real estate agent

After settlement

  • Congratulations! You have sold your property.

How can Sharrock Pitman Legal help?

If you are looking to buy or sell your property, please feel free to contact our Property Law team on 1300 205 506 or fill in the contact form below. We can answer any queries you may have regarding the sale or purchase of your property, and provide you with tailored advice to your unique circumstances.

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 a member of our Legal Team

,

.

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 Supreme 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 published on the Supreme Court website for at least 14 days prior to any application being lodged.

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 usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes 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 or Letters of Administration. 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

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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.