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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

Ensuring the details on your property Certificate of Title are correct and up-to-date, can avoid issues with future transactions. Property Lawyer Ben Drinkwater explains common errors resolved by our Property Law team.

Individuals, companies and other entities transact with both residential and commercial/industrial property every day. However, what can you do if you realise that:

  • Your name/your company’s name is incorrect on the Certificate of Title?
  • After your settlement was finalised, it was discovered that a Title was missed by your representative or the transfer was never registered?

If you discover that one of these issues arise for you or your business or organisation, here are the options available to you to resolve the matter.

1. Your details are incorrect of out-of-date on the Title

Quite regularly, our Property team discovers that individuals transact with property and later notice that when they purchased the property, there is a different name on the Title to the name they currently use. For example, a maiden name, a different spelling of their name, or their company name was the original name prior to any changes with ASIC. If this occurs, you may be able to complete an application to Land Victoria for a new folio under section 32 of the Transfer of Land Act 1958 (Vic). This application enables the “error” or out-of-date information to be corrected in the Register. Depending on what information needs to be updated, Land Victoria may require statutory declarations from the Registered Proprietor(s) or their Director(s) if they are a company, to support the request.

Once Land Victoria reviews this information, and if they are satisfied, a new folio will be issued for your property and the error will be rectified.

2. You discover that a Title was missed at settlement

Unlike the above application, a Title missed at settlement is a more serious issue that individuals and companies can encounter. In the age of electronic conveyancing through PEXA (Property Exchange Australia Ltd), the chance of these errors occurring is arguably lessened (due to the additional electronic checks and balances). However, in historical settings, it is still possible that, for example, your car park title was not transferred across at the settlement or in more extreme circumstances, the paper registration of a transfer from pre-PEXA was never completed.

If a Title is missed at settlement (eg: a separate accessory car park title), this will need to be rectified through a subsequent transfer and duty application. However, even if this discovered many years after the conveyancing was completed, it can still be rectified through PEXA.

3. Registration of the Transfer of Land never occurred

An example of an even more serious situation encountered by our Property team involved the discovery that our client’s prior paper-based property transfer never being registered with Land Victoria. This was despite our client having legal representation at the time, all purchase funds and duty being paid and all parties treating the transaction as at an end. It was only discovered a decade later that the transfer never occurred. Even in this scenario, it is possible to rectify the ownership on that Title (despite the time delay). However, whether this is done with the consent of the Vendor at the time of the initial transfer, by court order, by vesting order under section 47 of the Transfer of Land Act 1958 (Vic) or by adverse possession (which has additional time requirements and evidence burdens that must be met) will solely depend on the specific factual scenario.

How can we assist at Sharrock Pitman Legal?

At Sharrock Pitman Legal, we will be able to provide timely, concise advice concerning your specific circumstances and be able to guide you about how best to proceed with resolving your property matter. Our Accredited Property Law team will ensure that you understand the options available to you and the costs involved in resolving any issues regarding your Property Certificate of Title that you or your entity may be encountering. Please don’t hesitate to contact us on 1300 205 506 or sp@sharrockpitman.com.au.

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 an Associate Lawyer 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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Ensuring the details on your property Certificate of Title are correct and up-to-date, can avoid issues with future transactions. Property Lawyer Ben Drinkwater explains common errors resolved by our Property Law team.

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.