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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

Taking a proactive approach to workplace health and safety is essential for any business. The consequences – both in ethical and legal terms – of businesses failing to provide a safe workplace is simply too high to be ignored.

The main legislation that governs a business’s obligation to maintain a safe workplace is the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’). WorkSafe is the authority responsible for regulating businesses and enforcing the OHS Act.

General responsibilities for employers

Under the OHS Act, employers must “so far as is reasonably practicable, provide and maintain … a working environment that is safe and without risks to health.” This duty extends to:

  • Employees
  • Contractors, and
  • Insofar as risks arise from the conduct of the employer’s undertaking, other people in general.

Employers must also, so far as is reasonably practicable:

  • Monitor the health of their employees
  • Monitor conditions in any workplace under their control
  • Advise employees about workplace health and safety matters, including who they can contact to make an enquiry or complaint about health and safety matters
  • Keep information and records relating to the health and safety of employees, and
  • Engage suitably qualified people to provide advice to the employer on health and safety matters.

Employee responsibilities  

Employees also have a duty to care for the health and safety of themselves and others in the workplace and to cooperate with their employer in ensuring compliance with the OHS Act.

Individuals and organisations that breach these provisions of the Act can face fines and, in serious cases where someone recklessly endangers a person in the workplace, imprisonment of up to five years.

Codes of Practice

In addition to the general obligations under the Act, the OHS Regulations establish obligations for employers with respect to specific risks in workplaces. WorkSafe provides Codes of Practice to assist employers with complying with their specific obligations under the Regulations, including with respect to:

  • First aid
  • Storage and handling of dangerous goods
  • Confined spaces
  • Construction
  • Noise, and
  • Asbestos.

We recommend looking at the Codes of Practice to see if any apply to your business.

Health and Safety representatives and Union representatives

The OHS Act established mechanisms that employees and unions can use which requires employers to address health and safety issues in the workplace.

Employees are able to form working groups and elect a Health and Safety Representative to speak on their behalf to their employer.

The powers of a Health and Safety Representative are significant, and include the power to issue interim improvement notices to the employer which requires that they address health or safety issues in the workplace.

The employer must either comply with the notice or, if they consider the notice misconceived, ask WorkSafe to send an inspector to inspect the workplace. The inspector will then determine whether the employer is required to address the issue which was raised.

Unions can also have their authorised representatives enter a workplace, where the representative believes that the employer is in breach of the OHS Act. The representative must have a valid entry permit, which they need to produce to the employer upon entering the workplace.

WorkSafe Inspectors

WorkSafe inspectors can enter a workplace for an inspection of health and safety risks. Where an inspector believes an employer is in breach of their OHS obligations, they can issue an improvement notice to the employer.

In serious cases, where the inspector believes that an activity is occurring that involves an immediate risk to health or safety, the inspector can issue a prohibition notice. This notice prohibits the person in charge of the workplace from allowing the activity to continue.

Preventative steps employers should take to mitigate risk

Of course, you do not want to be in a situation where there are unmanaged health and safety risks in your business. The first step for any employer is to identify the particular risks in their workplace.

Once you have identified the risks, you should:

  • Eliminate unnecessary risks
  • Establish procedures to mitigate and control the risks that you cannot completely eliminate, and
  • Regularly review the risks in your workplace and your OHS policies and procedures to ensure that they are up to date and follow best practice.

Every business and industry is different and will therefore have different requirements. Some businesses will have relatively straightforward methods of managing risks, whereas others will require far more elaborate health and safety protocols and procedures. We recommend reading the relevant WorkSafe Codes of Practice as these provide a good starting point when considering health and safety in the workplace.

How can Sharrock Pitman Legal assist?

If you have any further queries in relation to the above, please do not hesitate to get in contact. Call Managing Principal and Accredited Commercial Law Specialist Mitchell Zadow on 1300 205 506 or complete 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.

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Employment 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.