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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

In 2015, Victoria introduced the requirement for parties involved in property transactions, including corporations, to have their identities verified by approved verifiers. The majority of property transactions are now being completed electronically via the online platform PEXA. PEXA allows for a variety of transactions to be completed, including, but not limited to:

  • property transfers;
  • lodging caveats;
  • discharging mortgages; and
  • the registration of applications by surviving proprietors or legal representatives.

There are various steps, however, that are required to be completed by your lawyer prior to completing your transaction electronically.

1. Your identity must be formally verified

Verification of Identity, or VOI for short, is a process that ensures that a person is who they claim to be. VOI is a legal requirement that helps to reduce the risk of fraud and ensures people feel confident in the documents they are signing. The process involves a face-to-face interview and the perusal of original identity documents

Any person who is a party to an electronic transaction must have their identity formally verified prior to a lawyer signing off on the transaction. This ensures that the transaction is compliant with the electronic conveyancing framework. If the party to the transaction is a company or corporate trustee of a trust, then two directors or the sole director/secretary of that entity must have their identities formally verified.

Where can I get a VOI done?

The three most common options are:

  1. Attending the office of your lawyer or conveyancer; or
  2. Attending a registered Australia Post office (there are around 1,450 outlets across Australia); or
  3. A private identity agent or company (such as ZipID or IDSecure) can come to your home or office.

Each party to a transaction will require 100 points of identification to complete the process. Once you have completed your VOI, it will be valid for 2 years from the date of the identification. However, if you change lawyers during this time, they may request an updated verification occur prior to completing your transaction electronically.

What documents do I need to bring to complete a VOI?

The documents required to be supplied are provided in six categories. If you are unable to provide all the documents in the first category, then you will need to move onto the second category and so forth:

  • For Australian citizens or residence, original documents to be supplied within category 1 include either (1) an Australian or Foreign Passport, (2) an Australian driver’s license or proof of age card that has been issued by your State or Territory; and (3) a change of name or marriage certificate if necessary.
  • For Australian citizens, original documents to be supplied within category 2 include (1) an Australian or foreign passport; (2) a full birth certificate, citizenship certificate or descent certificate; (3) a Medicare or Centrelink or Department of Veterans’ Affairs card; and (4) a change of name or marriage certificate if necessary

There are also further categories and categories that specifically apply if you are outside of Australia or not an Australian resident. See further information for what documents are available for use here.

2. Completing a client authorisation form

In addition to VOI, each party to an electronic transaction must sign a valid client authorisation form prior to the matter being signed off electronically. This form will specify that you authorise your lawyer or conveyancer to complete on the transaction on your behalf via PEXA.

It should be noted that there is a section of the client authorisation form where you are able to provide your lawyer with a standing authority. Standing authority is the ongoing authority to sign off on electronic transactions on your behalf. You should note that, if this is not specified, you will need to complete a new client authorisation form for each transaction.

Once you have completed your verification of identity and client authorisation form, your lawyer will be permitted to complete your electronic transaction in a compliant manner under the ARNECC Rules.

How can Sharrock Pitman Legal assist?

At Sharrock Pitman Legal, these processes naturally form part of any property matter that we complete on your behalf. If you have any further queries or require assistance with a property transaction, please contact our Accredited Specialist Property Law team on 1300 205 506 or alternatively fill in the contact 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

,

.

Ben Drinkwater

For further information contact

Benjamin Drinkwater

Benjamin is a Legal Practitioner at Sharrock Pitman Legal.

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

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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 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.