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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

Whether you are buying or selling property, you are likely to come across a Section 32. It is also known as a 'Vendor's Statement'. It comes from Section 32 of the Sale of Land Act 1962 (Vic), which requires certain documents and information to be disclosed when selling a property. Before a Purchaser signs a contract for a property, they must be provided with a Section 32, signed by the Vendor.

It is an important document, as it discloses relevant, important matters to the land and any buildings so that a Purchaser might make an informed decision about purchasing.

Information in a Section 32 includes:

  • Evidence of title, proving that the vendor owns the property and is entitled to sell it,
  • Financial matters, such as any mortgage, if the property is being rented, and outgoings such as water rates and council rates,
  • Any insurance details including insurance of any building constructed in the past six years (a requirement through the Building Act 1993),
  • Details of any easements, covenants or restrictions,
  • If the property is accessible by road, if it is in a bushfire area, and other planning matters,
  • Any notices that affect the land, such as a VicRoads notice,
  • Any building permits that have been issued in the past seven years,
  • If there is an owners corporation and details of it,
  • Services connected to the land, and
  • Any other relevant matters.

Consequences of non-compliance

The consequences of non-compliance can be serious. Examples of non-compliance include:

  • Providing false information about a particular aspect of the statement, such as undervaluing rates in an attempt to attract more buyers,
  • Failing to adequately disclose required information such as building permits issued over the last seven years,
  • Failing to even provide a Section 32 statement at all.

In the event of non-compliance, a Purchaser may withdraw from of the contract before settlement. This is also the case if the Section 32 was not signed by the Vendor before the Purchaser signs the contract.

How is the Section 32 different to a Contract of Sale?

When selling property, these documents will be connected. However, in practice, the Contract of Sale will contain the contractual terms such as GST conditions, auction conditions, deposit payment conditions, and default conditions, to name a few. On the other hand, your Section 32 is a disclosure document, as discussed above.

It is important to always obtain legal advice to prepare both the Contract of Sale and the Section 32 so that any special conditions, in addition to the standard general conditions, can be inserted into the Contract, and so providing adequate disclosure to prevent the Contract from being ended.

How can Sharrock Pitman Legal help me?

Here at Sharrock Pitman Legal, we have an Accredited Specialist in Property Law, and have a team of experienced property lawyers who can guide you through all the requirements that comprise the Contract of Sale and Section 32. Through precise and careful drafting, you can be assured that we are protecting your legal and financial interests. Buying or selling real estate involves a major, expensive asset where even inadvertent mistakes can be very costly indeed. Remember, we will be:

On Your Side

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

,

.

For further information contact

Andre Ong

Andre is a Principal of Sharrock Pitman Legal.

He heads our Property Law Group and is an Accredited Specialist in Property Law (accredited by the Law Institute of Victoria).  He also deals with Commercial Law. For further information, contact Andre Ong on his direct line (03) 8561 3317.

More on

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 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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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.