Probate is the process by which there is confirmation that a will has been validly made and approved by the Supreme Court.

A grant of probate gives the Executor/s the authority to deal with the assets of the estate. In some small estates, it may not be necessary to obtain probate. If the only asset is a bank account, bank rules may allow a small account to be closed without probate.

An Executor is a legal term referring to a person named by a maker of a will, or nominated by the testator, to carry out the directions of the will. Typically, the executor is the person responsible for offering the will for probate, although it is not absolutely required that he or she do so.

If a person’s assets are all jointly owned no grant of probate is required.

The process of obtaining a grant of probate should be concluded within 8 to 12 weeks of the date of death.

The Supreme Court charges fees to process the application. The court also regulates what lawyers may charge for the legal work, based on the size of the estate.

An original death certificate is required to apply for probate and to allow for the administration of the estate.

Most banks will give an executor immediate access to bank accounts of less than $5000. Bank accounts in joint names should not be affected at all by the death of one joint owner.

You do not need a lawyer, however, administering of estates can be quite complex and may require a considerable amount of time necessary to undertake all the tasks that are required. There are legal requirements that must be satisfied to comply with the law and if you are an Executor it is probably wise to at least gain some initial legal advise at the earliest opportunity.

A will is a document detailing how a person’s property is to be distributed on death. A will also appoints someone who will look after the administration of the terms of the will.

It is advisable to make a new will especially if you have a family or other dependants. In making a will you can direct how your property is distributed the way you wish; including gifts to family, friends, charities and other persons; avoid additional expense, difficulty, delay and possible anguish in relation to winding up your estate.

Although a will does not need to be drawn up by a lawyer the law concerning wills and estates has many pitfalls and it is highly desirable to obtain legal advice, particularly with regard to who might be entitled to challenge your will.

When making your will you should appoint an executor: The person who will handle your affairs after you die. You can name more than one executor and you can choose anyone to be the executor.

If a person dies without having made a will that person is said to have died intestate and that person’s property is distributed according to a legislative formula, regardless of what the property owner’s wishes might be.

In cases of intestacy the next of kin are required to take the appropriate action for the estate to be administered, which in most cases will require an application to the Supreme Court for Letters of Administration.

Yes, considering that you make proper provision for your spouse and children (including ex-nuptial children); otherwise, they could challenge your will.

You should alter your will if your circumstances change in any way. There are three ways of altering it; by making a codicil (a separate document in which you make a minor amendment; by revoking it or cancelling it; and by revocation and re-publication of an earlier will.

Wills should be regularly reviewed to ensure that they reflect the current wishes of the maker. It is recommended that wills be periodically reviewed every 5 years or upon the happening of a significant event in the person’s life for example marriage and death of a beneficiary or executor.

At Owen Hodge Lawyers we can advise you on the adequate provision for your spouse and children; advise you whether or not they may have a possible claim against your estate; help you with capital gains tax and explain the effects of different types of ownership of property; make sure your wishes are correctly documented, make sure your will is properly drawn, signed and witnessed; keep your new will in safe custody; and explain and other questions you may want answered.

It is a legal document that appoints a person, the attorney, to act on behalf of another person, the principal, with regards to managing that person’s property. This is an ordinary power of attorney which ceases to have effect if the principal loses the capability to make financial decisions.

Unless an ordinary power of attorney, the “Enduring Power of Attorney” gives the attorney the power to act on your behalf even if you become mentally or physically incapable of making financial decisions.

A power of attorney is particularly useful if you are going overseas or if you require hospitalisation. It allows someone you trust to act on your behalf in your absence. You can give a person control of all your business affairs by giving the authority to that person to act on your behalf and to do anything that you may lawfully do.

The enduring power of attorney is only effective once the attorney has accepted the appointment. A statement of acceptance in the appropriate form needs to be signed by the attorney.

An enduring power of attorney must be witnessed by a prescribed person. A lawyer is a prescribed person.

You can cancel your power of attorney at any time as long as you are mentally capable. If you wish to stop a power of attorney you should sign a document called a “Revocation of Power of Attorney”.

Property Law

What reports do I need to obtain before entering into a contract?

It is advisable to obtain reports before exchanging contracts so that you can make some assessment about the condition of the property. There are a number of different reports which you may obtain such as building inspection report, pest report, strata records report (if applicable) and contamination report (if applicable).

What is stamp duty?

Stamp duty is a State tax on a range of paper and electronic transactions, such as:

• Hire purchase agreements
• Insurance policies
• Leases and mortgages
• Motor vehicle registration and transfer
• Transfers of property

When do I pay stamp duty and how much?

Stamp duty is calculated based on the purchase price and it is payable within 3 months of exchange of contracts but must be completed before settlement. When a buyer is obtaining finance stamp duty on the mortgage will also be payable. However, if you are purchasing a property “off the plan” you can postpone payment of stamp duty for up to 1 year.

What is “cooling off” period?

It is a clause which gives the buyer a period in which to decide whether to proceed with the contract. The Conveyancing Act in New South Wales provides that buyers of residential property are entitled to a “cooling off” period of 5 business days after contracts have been exchanged and deposits paid.

When do I pay a deposit?

The deposit is usually 5% or 10% of the price. You are required to pay the deposit on exchange of Contracts.

What does exchange of contracts mean?

Refers to the date on which the contract signed by you is exchanged with the counterpart contract signed by the purchaser. On this day an owner becomes bound to sell the property and the purchaser becomes bound to buy it subject to any “cooling-off period”.

What is settlement?

It is the day upon which the sale is made final; when the process of conveyancing is finalised and the buyer is able to take possession of the purchased property. This process usually takes about six weeks after contracts have been exchanged

What is the difference between exchange and settlement?

At exchange the contract usually becomes binding and at settlement you either own the property as Purchaser or complete the sale as Vendor.