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Do you 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:


CALL: (03) 8561 3318

In this article, we explain the purpose of a business name and provide tips on how to register or transfer your business name.

Your business name is a valuable asset!

Whether you are planning to start your own business or take over an existing business, there are procedures to follow to ensure that your business complies with Government regulations and the Corporations Act 2001 (Cth).

What is a Business Name? Do I need to register my Business Name?

A business name simply means the name that you use in relation to your business.

Under the Business Names Registration Act 2011 (Cth) (“the Act”), you need to register your business name if you are carrying a business under that name unless:

  • You are an individual and you are carrying the business under your personal name;
  • You are a corporation and you are carrying the business under the corporation’s name; or
  • You are a partnership and you are carrying the business under the names of all of the partners.

While you are required to register your business name, please note that the registration of the business name alone does not grant you any intellectual property rights over the business name.  If you would like to own exclusive rights over the business name in relation to the goods or services you sell, you need to apply to register a trade mark with IP Australia.

Accordingly, having a registered business name might not necessarily give you the rights to carry on a business under that name. If your registered business name could cause confusion due to its similarity to any registered trademarks, you might still be in breach of trade mark law and/or the Australian Consumer Law for misleading and deceptive conduct.  

Once you have registered your business name, your business name will be recorded in the National Business Names Register.

Transferring Your Business Name

If you sell your business, you can transfer your registered business name online via the ASIC website as follows:

  1. You need to have an account with “ASIC Connect” and obtain a password, which you can use for all future dealing of the business name.
  2. To transfer the business name, you need to first request to cancel the business name.
  3. By requesting to cancel the business name, ASIC will offer you the option to request to transfer the business name. If you choose this option, ASIC will send you a letter with a unique number.
  4. Simultaneously or after the settlement of your sale of business, you can provide the unique number to the purchaser. This will enable them to register the business name exclusively within a three month period.

Buying or Selling a Business? Sharrock Pitman Legal can help.

Our Accredited Commercial Law team has been helping business owners and investors manage their business portfolios for over fifty years. Our team has experience in assisting businesses across a wide range of industries including retail, hospitality, manufacturing, health and medical practices, construction and real estate.

Our lawyers can also advise business owners on intellectual property and employment law – important factors to consider for any business owner or operator.

It is important to get expert advice to ensure that your business runs smoothly. Get in touch with us and our team of experienced Commercial Lawyers 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 reliedupon as legal advice. Any legal matters should be discussed specifically withone of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation

Written by a member of our Legal Team

,

.

Ignatius Suwanto

For further information contact

Ignatius Suwanto

Ignatius Suwanto is a lawyer at Sharrock Pitman Legal. He practises in the areas of Commercial Law and Property Law. For further information, contact Ignatius on his direct line (03) 8561 3331.

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Commercial Law

In this article, we explain the purpose of a business name and provide tips on how to register or transfer your business name.

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.