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Do you need help with Probate?

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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

The information contained in this article is current as at 30 September 2020. To view information on the latest coronavirus updates, please visit our COVID-19 Updates, Webinars and Resources page or alternatively contact us on (03) 9560 2922 for further information on any recent changes.

Back in April, during the initial COVID-19 crisis, the Federal Parliament and Fair Work Commission made a number of unprecedented, temporary changes to employment law, to help both employers and employees adjust to the new situation created by the pandemic.

The most important of these changes was the introduction of the JobKeeper directions into the Fair Work Act, which enabled employers to adjust employees’ work hours, duties and work location, among other matters. An employer’s power to issue JobKeeper directions was scheduled to end on 27 September 2020, but the Parliament has passed new legislation extending the scheme until 28 March 2021 for eligible employers and employees.

Importantly, some employers will still be able to issue JobKeeper directions even if they are no longer eligible for JobKeeper payments.

JobKeeper and the Fair Work Act

The Fair Work Act allows eligible employers to give directions:

  • Directing employees to work reduced days or hours;
  • Direct employees to work any duties that are within their skill or competency; and
  • Direct employees to work from home or another place (not being their usual place of work) from which it is reasonable for them to work.

In addition, the Act allows employers to make the following requests of their employees, which an employee must not unreasonably refuse:

  • An employer can ask an employee to work on different days or at different times to that which they normally would; and
  • An employer can ask employees to take paid annual leave, provided that the employee will not have less than two weeks accrued leave as a result of complying with the request. It is important to note that this particular provision only applies to employees receiving JobKeeper payments and not to legacy JobKeeper employees (which we discuss below).

Each of these provisions operate despite any other clause in an Award, Enterprise Agreement or an employee’s employment contract.

Eligibility

To continue to be eligible to exercise these rights from 28 September 2020:

  • The employer must either be eligible from 28 September 2020 for the JobKeeper Scheme and be eligible to receive JobKeeper payments for that particular employee; or
  • Where an employer has previously been receiving JobKeeper payments with respect to an employee, but will not receive payments from 28 September 2020, they will still be able to give JobKeeper directions to those legacy JobKeeper employees provided that their business has suffered a 10% loss of turnover in the relevant quarter and they provide the necessary evidence.

An employer can only issue JobKeeper directions where:

  • The need to make the directions or requests are attributable to the coronavirus pandemic;
  • The directions or requests are reasonable;
  • The employer has given the employee at least three days’ written notice of the employer’s intention to give any direction, or seven days’ in the case of a legacy JobKeeper employee (unless the employee genuinely agrees to a shorter period of notice);
  • The employer has consulted with the employee before giving a direction (and the employer must keep a written record of that consultation); and
  • The direction is in writing.

There are some limits on the directions that an employer can give to a legacy JobKeeper employee. For instance, a reduction in hours must not ordinarily reduce that employee’s hours below 60% of their pre-COVID-19 hours.

If an employee is unhappy with a JobKeeper direction, they can challenge the direction in the Fair Work Commission. It is therefore important that employers ensure that the directions are reasonable given the situation of the business and the effects of COVID-19 on the business.

Changes to ModernAwards

In April, the Fair Work Commission amended most Modern Awards to include COVID-19 provisions for unpaid pandemic leave and the taking of annual leave at double time for half pay. These changes only operated until 30 June 2020, and since then the Commission has been making changes to Awards on an Award by Award basis. It is therefore important that employers familiarise themselves with the most recent versions of the Awards that apply to their employees, and follow any updates. Modern Awards can be found here.

How can Sharrock Pitman Legal assist?

If you require specific legal advice for your situation or have further queries regarding the JobKeeper Scheme, please feel free to contact us on 1300 205 506, or alternatively fill in the contact form below. See our coronavirus information page for more resources and information regarding the coronavirus pandemic and our work arrangements.

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

,

.

Samuel Ellemor

For further information contact

Samuel Ellemor

Samuel is a Legal Practitioner at Sharrock Pitman Legal.

He deals with areas of Commercial Law, Employment Law and Charities & Not for Profit Law. For further information, contact Samuel on his direct line (03) 8561 3316.

More on

Employment 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

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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.