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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

Based upon new laws that came into effect on 22 February 2018, Australia has introduced a Mandatory Data Breach Scheme. The Mandatory Data Breach Scheme applies to businesses in the event of confidential information being compromised through a data breach in their system.

Some questions to ask yourself if you believe you may need to report a data breach are:

  • Has your business been hacked?
  • Is it likely there has been unauthorised access to personal information your business holds as a result?
  • Could the individuals whose personal information might have been compromised suffer serious harm if their personal information is disclosed?

If the answers to these questions are yes, you may need to report the data breach to the Office of the Australian Information Commissioner (‘OAIC’) and to the individuals affected.

The Mandatory Data Breach Scheme applies to all businesses and not-for-profit organisations that are required to comply with the Australian Privacy Principles, as contained in the Privacy Act 1988 (Cth). Generally, the Australian Privacy Principles apply to all businesses and not-for-profits that are earning revenue of $3 million or more. Some organisations, such as health organisations and organisations in the business of collecting or distributing personal information, will be covered by the Australian Privacy Principles, regardless of their revenue.

When do I need to disclose?

There are thirteen Australian Privacy Principles. Under Australian Privacy Principle 11, organisations are required to take reasonable steps to prevent the misuse of personal information and to protect personal information from unauthorised access, modification or disclosure.

An organisation will be required to notify OAIC in situations where:

  1. There has been unauthorised access to, or disclosure of, personal information the organisation is holding, or
  2. The organisation has lost control of personal information the organisation was holding and, as a consequence, unauthorised access to, or disclosure of, the information is likely to occur, and
  3. If someone were to access or disclose the information, a reasonable person would conclude that the individuals affected would be likely to suffer serious harm.

However, the organisation is not required to disclose the data breach if the organisation takes remedial action with the result that the individuals affected by the data breach are not likely to suffer serious harm, notwithstanding the original breach.

What is serious harm?

The legislation does not define ‘serious harm’. In the Explanatory Memorandum that accompanied the Parliamentary Bill introducing the data breach notification regime, ‘serious harm’ was said to include ‘serious physical, psychological, emotional, economic and financial harm, as well as serious harm to reputation’. Mere distress would not ordinarily be sufficient enough to be defined as ‘serious harm’.

The legislation is intended to cover a broad scope of the possible kinds of harm a person may suffer, but the harm must, in any event, be ‘serious’.

The legislation does set out a list of factors that must be taken into account in determining whether ‘serious harm’ is likely to occur, including:

  • The nature and sensitivity of the information,
  • How well protected the information is, and
  • Whether the people who have or are likely to obtain the information are likely to use the information to cause harm.

How do I disclose a data breach?

If your organisation does need to disclose a data breach, you will need to provide a statement to the Information Commissioner setting out the details of the data breach. OAIC prefers notification using the online form found on their website.

In most circumstances, you will also be required to notify the individuals affected by the data breach. Details of the information you need to include in your statement, and the link to the form, can be found here.

There are significant penalties if an organisation fails to disclose a data breach when it ought to have done so, meaning you need to take your organisation’s obligations to report seriously.

How Can Sharrock Pitman Legal assist?

Our society is becoming increasingly conscious of the importance of privacy and so it is important that organisations are aware of their legal duties in this area. If you have any queries about the mandatory data breach notification obligations that apply to your organisation, or your organisation’s general obligations under the Australian Privacy Principles, please do not hesitate to contact Mitchell Zadow on 1300 205 506 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 one of our lawyers

,

.

Samuel Ellemor

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

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. For further information, contact Mitchell on his direct line (03) 8561 3318.

More on

Commercial Law

Based upon new laws that came into effect on 22 February 2018, Australia has introduced a Mandatory Data Breach Scheme. The Mandatory Data Breach Scheme applies to businesses in the event of confidential information being compromised through a data breach in their system.

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.