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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

As Australia’s population continues to age, more and more people may seek to sell their current property and move into a Retirement Village. This may enable them to build greater friendship groups, have a greater level of care available to them on a daily basis or provide them with the opportunity to live closer to family. However, before signing any documents, it is very important that these are thoroughly reviewed by a legal practitioner.

Common Structure of Retirement Village Documents

If you are interested in entering into a Retirement Village, you will initially receive the following documents:

  • The proposed Residency and Management Contract;
  • The Disclosure Statement; and
  • A Factsheet.

For certain types of Villages, you may also receive a proposed Contract of Sale and Vendor’s Statement and other miscellaneous Deeds (depending on the specific Village). You will not be permitted to sign any Contracts until at least 21 days after you receive the documents (per the Retirement Villages Act 1986 (Vic)) and hence, this is perfect opportunity for you to have them reviewed by a legal practitioner.

Different Types of Retirement Village Arrangements

Typically, the majority of Retirement Villages will operate on the basis of one of the following options:

  1. You would purchase the unit as if you were buying a regular property and become the registered proprietor of the unit;
  2. You would pay the Village a sum of money, usually called “an ingoing contribution”, to secure your right to reside at the Village. However, you will not be registered Title;
  3. The Village may offer shares which you would buy to secure your residency rights; or
  4. The Village may offer a combination of these options (ie: you purchase your unit and pay a smaller ongoing contribution).

It is important to note that each option has both positive and negative aspects which must be considered before executing any documents, and to ensure you are comfortable with the requirements. For example, some options will result in stamp duty being payable whereas some options will not result in you owning your property. If you have any concerns about these ownership rights, you should consult a legal practitioner. You should also obtain financial advice before entering into any Retirement Village contract.

What else will my Residency and Management Contact include?

In Victoria, the Retirement Villages (Contractual Arrangements) Regulations 2017 (Vic) (along with the Retirement Villages Act 1986 (Vic) currently govern what must be included in Residency and Management Contracts. This includes, but is not limited to, the following:

  • Ongoing fees that may be payable during your occupation in the Village;
  • What fees may be payable upon your departure from the Village (noting that many Villages include a significant “deferred management fee”);
  • Any restrictions on what you can do at your property (ie: can you keep pets, are you allowed to paint your walls etc); and
  • How the contract can be terminated by either the resident or owner/manager.

We would strongly recommend that these clauses are carefully reviewed by a lawyer as they can be drafted in a complex manner.  Not all contracts and agreements for Retirement Villages are the same.

What is a Disclosure Statement and the Factsheet?

The Disclosure Statement and Factsheet will be documents that are provided to you prior to executing any documents. These documents will provide further specific information about your proposed property but also the Village as a whole. They should also be reviewed prior to executing any contract.

How can we assist at Sharrock Pitman Legal?

At Sharrock Pitman Legal, we will be able to provide timely, concise advice concerning your proposed retirement village documents. We will ensure that you understand which type of arrangement the Village is offering and that you understand all the costs that may be associated, both initially and during the course of the time when you will be living in the Retirement Village.  

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

,

.

Benjamin Drinkwater

For further information contact

Benjamin Drinkwater

Benjamin is a Legal Practitioner at Sharrock Pitman Legal.

He deals with Property law. For further information, contact Benjamin Drinkwater on his direct line (03) 8561 3328.

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Property Law

As Australia’s population continues to age, more and more people may seek to sell their current property and move into a Retirement Village. This may enable them to build greater friendship groups, have a greater level of care available to them on a daily basis or provide them with the opportunity to live closer to family. However, before signing any documents, it is very important that these are thoroughly reviewed by a legal practitioner.

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.