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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

Being a first home buyer is an equally exciting and daunting time. With all the information available, it can be quite overwhelming trying to understand the process of purchasing your new home. We have 9 tips to assist you through this process.

Initial Research

  • Tip 1: Speak to a mortgage broker or a bank directly and seek finance pre-approval. This will provide you with a general guide as to what your property budget may be and whether you need to save more funds before looking to purchase a property. There are various costs associated with purchasing your first property that you may not have considered before, including:
  1. Legal/conveyancing fees
  2. Stamp duty (if you are ineligible for the first home buyers stamp duty exemption or concession).  You can estimate your stamp duty payments by using the State Revenue Office’s stamp duty calculator
  3. Lodgement fees.  You can estimate your lodgement fees by using Land Use Victoria’s lodgement fees calculator. It is important to note that this figure will be slightly higher if the vendor has a mortgage.
  4. Bank fees
  5. Mortgage broker’s commission
  6. Mortgage insurance (if your deposit is less than 20% of the purchase price), and
  7. Moving costs.
  • Tip 2: When you have an idea of your budget, you can move on to looking at suitable properties. Once you have found ‘the one’, don’t feel pressured by real estate agents urging you to sign the Contract straight away. Before signing a Contract of Sale, consider the following:
  1. Seek legal advice on the contents of the Contract of Sale and Section 32,
  2. Research comparative property prices to form an idea of whether the property is well-priced,
  3. The time-frame you would need for settlement, keeping in mind you will most likely need to organise finance with a bank or other lender, and
  4. Whether you need to have a building and/or pest inspections.
  • Tip 3: If you are purchasing a property with someone else, you should consider how you would like to be listed on the Certificate of Title, namely whether you will be:
  1. joint owners,
  2. tenants in common with equal shares, or
  3. tenants in common owning different shares (e.g. 60/40).  

Discuss these options and your preferences with a lawyer and your bank, as they may have additional requirements, depending on your preference.

Buying a Property: pre-contract signing

  • Tip 4: An important consideration is whether the property is being sold by auction or private sale. Depending on this, your rights and your purchase strategy will change because properties purchased at auction are purchased unconditionally.
  • Tip 5: If you are purchasing a property off-the-plan, i.e. a property has not been built yet, there will be additional considerations.
  • Tip 6: Once you are prepared to sign a Contract of Sale, keep in mind:
  1. Whether you need to make the offer subject to finance, building and pest inspections (this only applies to properties that are not purchased at auction).
  2. Whether your offer is within the stamp duty exemption or concession threshold.
  3. Whether there is a cooling off period that applies in certain circumstances if you do change your mind.
  4. To thoroughly review and inspect the property, including turning on and off appliances, taking pictures throughout the property, and obtaining a building report if necessary so that you have a good record of the condition of the property on the date of signing the contract. This way, if anything changes before settlement, you have the condition of the property recorded. Such record will assist in avoiding any disputes that may arise regarding the condition of the property at the date of purchase,
  5. Whether you and the vendor have negotiated any additional conditions. If this is the case, they should be recorded in the Contract of Sale, and
  6. Not to rely on any representations made by real estate agents. If it is important, the details must be expressed in the Contract of Sale.

Pre-Settlement

  • Tip 7: Communicate with your lawyer, who will arrange all the paperwork for you leading up to settlement, and also with your bank and/or mortgage broker, to arrange the mortgage in time for settlement (if required).
  • Tip 8: On the date of settlement, if everything has been arranged with your lawyer and your bank/mortgage broker, your only requirement is to prepare to move in. Liaise with your lawyer regarding the settlement time so that you are able to arrange your moving schedule. If you are hiring a mover, ensure they are a member of the Australian Furniture Removers Association, as members are required to carry insurance and adhere to a code of conduct.

Once settlement has completed, you will be able to collect the keys for the property from the real estate agent and move into your first home!

Post-settlement

  • Tip 9: After you have moved in, remember to arrange for the connection of your utilities.

How can Sharrock Pitman Legal assist?

We have an Accredited Specialist in Property Law, and as such we can assist with any property related queries you may have, including those relating to purchasing your first property. Feel free to contact Principal and Accredited Specialist in Property Law, Andre Ong on (03) 8561 3317 or alternatively fill in the 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 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.