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Do you need help with Probate?

Our expert legal team is ready to take your call

Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business 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

You have a brilliant idea about a small business that you would like to start. You have developed a business strategy and you have lined up key stakeholders. You have put a lot of work into preparing your small business for launch and you are almost ready to go.

Now you just need to get the legal side of things sorted out.

In this article, we provide a checklist of things that you should consider as you start your small business.

1. Small Business Structure

First, you should decide on a business structure through which to operate the business. If you have not decided on your business structure, we recommend that you read our previous article, ‘Choosing a Business Structure’, which explains your options.

2. Agreements between Owners

If you are going into business with someone else, you should consider:

a) A shareholders’ agreement, if your business is operating through a company;

b) A partnership agreement, if your business is operating as a partnership; or

c) A unit holders’ agreement, if your business is operating through a unit trust.

3. Business name, ABN and GST registration

You will need to register a business name, Australian Business Number (ABN) and register for GST. You can register for each of these at the Commonwealth Government’s Business Registration Service website.

4. Domain name registration

Once you have an ABN, you will be able to register an Australian .com.au domain name.

You may also want to register other domain names, such as a .com domain name.

5. Employees and Employment agreements

You will need to check whether your employees are covered by a Modern Award, and ensure that you are complying with your obligations under the Fair Work Act 2009 (Cth), any relevant Modern Award, and applicable state legislation.

We recommend preparing written employment agreements for use with your employees. A written employment agreement will document the terms on which you engage your employees, and protect your interests as the employer.

6. Independent Contractor agreements

If you plan to engage independent contractors, then we recommend that you:

a) Obtain legal advice to ascertain that your contractors are in fact contractors and not employees. There are potentially serious consequences for wrongly classifying workers as contractors, when they are in fact employees.

b) Establish a written contractor agreement with each of your contractors.

7. Superannuation

You will need to pay superannuation to your employees. Generally, you also need to pay superannuation to your independent contractors. If you are an employee of your own company, you will need to pay yourself superannuation on any wage you draw from your company.

8. WorkCover insurance

You will need to have WorkCover insurance for your employees and often also for your independent contractors. If you are an employee of your own company, you will need to have WorkCover insurance to cover yourself.

9. Terms of Trade

Often, it is advisable for a business to establish terms of trade for use with its customers. Terms and conditions of trade would include matters such as:

• Payment terms

• Delivery

• Security for payment of liability and limitations.

10. Public liability, product liability and directors/officeholders insurance

You should obtain appropriate insurance to protect you and your business. Insurance products you should consider include public liability, product liability and management insurance.

How can Sharrock Pitman Legal assist in starting your small business?

At Sharrock Pitman Legal, we are Commercial Law Specialists, accredited as such by the Law Institute of Victoria, and have extensive experience helping new businesses get up and running. If you would like any advice or assistance starting your new business, 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

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'. 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 a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business 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.