What is a Will?

A Will is a legal document that sets out your wishes as to how your estate is to be distributed once you have passed away.
Who needs a Will?

Everyone over 18 who has capacity to make a Will, should make one. It does not matter how large or small your Estate may be or how old you are, it’s important to have a valid Will. A court can approve a Will being made for someone who cannot legally make a Will themselves, for example, for a wealthy child.

To be valid, a Will must be in writing, dated, signed by the person making the Will (the testator) in front of 2 witnesses.

Witnesses must be over 18, cannot be visually impaired and should not be beneficiaries of the will. They need not be qualified (ie a solicitor, Justice of the Peace or ComDec).

What happens if you die without a Will?

When you die without a Will, you are said to have died “intestate”. The Succession Act (Qld) sets out the rules (“intestacy laws”) as to how the estate of someone who has died intestate is to be distributed. These intestacy rules include, but are not limited to:

• If you have a spouse (including de facto) and no children, your spouse gets the whole of the estate; or

• If you have a spouse and a child, your spouse receives $150,000 plus household chattels plus ½ of the balance (or 1/3 if more than one child).

Dying intestate may have unwanted consequences such as:

• Having to sell the family home in order to distribute your estate;

• You can not provide for your pets or appoint a carer for them;

• An estranged family member benefiting from your estate when you do not want them to;

• Your Estate may not be distributed to your beneficiaries in the proportions that you may have wanted;

• You may be placing an extra burden on family members during a time of stress, grief and loss;

• Potential for conflict between the beneficiaries of your Estate, particularly amongst members of a blended family;

• It may be more costly and take longer to administer your estate.

Why get a solicitor to draw up your Will?

A Will is a legal document, and as such, if the Will is unclear, improperly worded or incorrectly signed or witnessed, then it may be invalid and your wishes completely disregarded.

A properly drafted and executed Will gives you a number of options in how your estate is administered and distributed, for example, you can:

• choose your own executor/s (that is, the people who will administer your estate once you’ve passed away);

• give gifts to specific people or to a charity. These gifts include small items such as photos and large items. As long as you own something, you may gift it in your Will);

• appoint guardians for your children and also leave funds for the guardians to use for your children’s expenses, such as health, medical or education expenses, as well as everyday living expenses;

• set up a trust to ensure that your assets are used or invested for the best interests of the beneficiaries;

• make provisions and care arrangements for your beloved pets;

• express specific wishes in relation to burial, cremation or organ donation arrangements

• make arrangements for the succession and continuation of your business, or sale of the business.

When should you update your Will?

You should change your Will if: you get married, divorced or separate from your partner, enter into a defacto relationship, you have children or grandchildren, your executor or beneficiary dies, there is a change in your financial circumstances or your wishes change, retirement, a natural disaster

Contact us

Lockett McCullough Lawyers has extensive experience in drafting Wills that clearly set out your wishes and give you peace of mind. We will offer you advice and experience in drafting your Will and also assist your Executors once you have passed away. We also offer a Safe Custody service to our clients where we will hold your Will and/or Enduring Power of Attorney securely. This avoids any uncertainty over the location and content of your Will.

For more information about our Wills and Estates services or to arrange an appointment to discuss your Will, please contact us.

There is often a myth this time of year that the Christmas and New Year period is known

amongst family lawyers to be “Divorce Season”. As family lawyers in Toowong, we often get asked if this myth is in fact true.

Unfortunately, there is some truth to this myth, as traditionally we see a huge increase in the number of family law clients who have either separated over the Christmas/New Year period or are thinking about it and want to know what their rights are if they were to separate from their significant other. Why is this the case? The festive season brings with it Christmas and New Year’s – significant occasions for celebration – the end of the school year, extended holidays (perhaps with family members who don’t always get along) and the opportunity to reflect on the year that was.

In addition, these times can be particularly stressful for families, particularly when there may already be tension throughout the year between spouses and/or family members such as in-laws.

These factors often lead to the ‘perfect storm’ in the realm of family law. In our experience there are many factors that play a pivotal role in influencing people’s decision to separate at this time of year, which we will explore below.

The end of the school year

For many couples contemplating separation, it is sensible to wait until the end of the school year in order to minimise any disruption to children, particularly where one parent is wanting to relocate to another region with the children.

Whilst it would be ideal to have parenting arrangements in place ready for the following school year and to provide children with a routine, parenting matters often take months to resolve. Accordingly, parents should take this into consideration and obtain legal advice as soon as possible so that parenting arrangements can be put in place at the earliest opportunity.

Christmas

For some parents, the decision has been made to separate but decide to delay the actual process of separating as “Christmas is all about the children”.

That being the case, many parents decide to subjugate their own emotional well-being until after the festive season is over. The thought process being that parents want to wait until after Christmas before separating to ensure the kids have a joyous time, free from the emotional upheaval that separation brings.

Even when parenting arrangements are in place, Christmas can be a painful time for parents, as typically most arrangements allow for children to spend half of Christmas Day with one parent and the other half of the day with the other parent. Alternatively, arrangements may see parents alternating Christmases whereby one parent spends all of Christmas Day with the children and then the other parent spends all of the following Christmas with the children. This arrangement means that one parent won’t even see the children every second Christmas Day.

For some couples, Christmas is the trigger for them to decide to separate. Perhaps there has been tension throughout the year which has culminated at Christmas time and one or both parties decide that “enough is enough” if Christmas has been a stressful occasion.

The silly season

With festive season celebrations also comes an increased level of alcohol consumption. This poses a high level of risk where relationships are concerned.

Under the influence of alcohol, people tend to make poor decisions, say things to their spouse that they otherwise wouldn’t have and a rift can develop in the relationship.

Whilst tension may already exist in the relationship, the ‘silly season’ presents as a prime opportunity to highlight the issues between the couple.

The New Year’s resolution

The decision to separate is not often made quickly. Many spouses continue to live in intolerable relationships for long periods of time before finally making the decision to separate. Separation is a tremendously difficult and confusing time for families and it can often take an important moment in time, such as New Year’s Eve, before people finally resolve to do something about it.

In our experience, clients make the decision in the New Year to be happy, make the break from their spouse and have a fresh start at a new life. Further, people are more motivated and have a renewed sense of preparedness for change and new challenges in the coming year.

Financial stress

Financial pressure is one of the main causes of tension within relationships which means it is also one of the leading triggers which may cause one or both people to decide to separate.

The Christmas and New Year period can be a financially stressful time for some couples. This is due to the cost of Christmas gifts, celebrations, holidays, reduced hours or income over the festive season and shortly, thereafter, back-to-school costs for the children. This means that any financial pressure that exists in a couple’s relationship is likely to peak during the festive season.

Conflict with the extended family

Holidays can mean that the whole family is couped up together in the same place, maybe for just one day or it may be for the whole Christmas/New Year period.

Spending longer periods of time with extended family is often a motivator for separation. On one hand, time with family can provide people with much needed support, comfort and guidance when making important decisions such as separation. On the other hand, family gatherings can bring simmering family issues to the boil.

Family gatherings can be challenging for families that do get along, let alone for families who don’t, and conflict between extended families and in-laws can trigger people to decide to separate.

Moving Forward

Whilst none of the factors outlined above may in isolation lead to separation, they tend to overlap during the Christmas/New Year period.

Further, whilst unfortunately this time of the year does see an influx of couples separating, having an experienced family lawyer to assist can make the separation process much smoother and less emotional for both parties.

It is important that couples who have made the decision to separate seek legal advice as soon as possible, rather than waiting until the end of the year, so that an agreement can be put in place between the parties and both can move forward with their lives as soon as possible.

If you are thinking of separating or have already made the decision to separate and need assistance with property or parenting matters, please contact our experienced family lawyers on 07 3870 8244 (Toowong office) or 07 3264 7692 (Albany Creek).

In our latest blog, we focus on the implementation of the new GST Withholding Regime.

The Government has lost $1.8 billion in GST revenue between 2012-2017 from phoenixing. This occurs when developers complete residential developments and collect their GST at Settlement, however then declare the company insolvent without remitting the required GST to the ATO from their sales.

According to the ATO, phoenixing is one of the main forms of non-compliance and over $2 billion in GST debt has been written off.

In order to address the risks associated with this practice, the Government has introduced a GST Withholding Regime which comes into effect on 1 July 2018.  The changes will affect both buyers and sellers of “new residential premises” eg. new residential vacant land, subdivisions, newly constructed units/townhouses or newly constructed house and land packages.

What must the Buyer do?

The Buyer must withhold the GST, by either:-

1. paying the GST amount to the ATO on or before settlement, or
2. providing a bank cheque drawn to the ATO to the Seller on settlement.

What must the Seller do?

The Seller must provide notice to the Buyer if the property being sold is captured by the GST Withholding Regime.  It is an offence not to provide the relevant notice.

Time Frames

The GST Withholding Regime will apply to all contracts entered into on or after 1 July 2018.

Contracts entered into prior to 1 July 2018 which do not settle until on or after 1 July 2020 are also captured by the new provisions.

The ATO has created a short video which explains the upcoming changes.

Moving Forward

We will provide further updates to you when they become available.  As with most changes to property or taxation legislation, we anticipate that changes to the standard REIQ contract and Disclosure Statements will be necessary.  In addition, an approved Form may become available for use by sellers in complying with their notice obligations.

The inevitable impact of the proposed amendments is the loss of cash flow to developers who will lose the benefit of holding GST payments made at settlement for up to three months before their next Business Activity Statement is due. Additionally, financiers and developers will be impacted by a reduction in the funds available to pay down debt at settlement caused by the delayed mechanism for applying the margin scheme.

Developers may need to speak with financiers about the likely short-term cash flow impacts, and arrangements between property development partners may need to be revisited to the extent distribution or ‘waterfall’ payment arrangements include payment to compensate for one party’s GST liability.

If you have any questions regarding the new GST Withholding Regime or require conveyancing services, please contact our experienced conveyancers and property lawyers on (07) 3870 8244 (Toowong conveyancing) or (07) 3264 7692 (Albany Creek conveyancing).

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Last week, we gave you a broad overview of the impact (or otherwise) legalising same sex marriage would have on our current family law system.

The purpose of this blog is to consider the impact the outcome of the postal votes may have on parents entering into agreements or Orders regarding children’s matters.

The Current Debate

As with any debate, there are currently two opposing views:

• the “No” campaign is based on the concept that marriage should remain between a Husband and Wife, children should be raised by a Mother and Father and should be protected from being bullied by their peers due to being raised in a different environment;

• the “Yes” campaign is based on same sex couples being allowed to marry if they chose, have the same rights as heterosexual couples, raise children and strengthen their family unit.

Regardless of the reasons behind each campaign, it is up to each individual to form their own views, beliefs and decisions on this topic.
To help you make an informed decision, below is a summary of the impact legalizing same sex marriages will have on parenting agreements and Orders.

Parental Responsibility

Currently each parent of a child who is under 18 years of age has parental responsibility at law unless otherwise ordered by the Court. This means that parents have duties, responsibilities and powers at law to make decisions for their child. Decisions would typically include enrolling a child in a particular school, determining whether your child will be religious and making decisions about your child’s health and wellbeing.

Same sex couples already have the ability to apply to the Court for parenting Orders and parental responsibility. Therefore currently a person’s marital status has no impact on the Court’s decision about such matters. This is not likely to change.

In terms of adoption and artificial conception, same sex couples can already be classed as the legal parents of a child and are able to be named on the birth certificate. This means, that there will be very little (if any) impact on adoption or artificial conception.

The Question of what is in a Child’s Best Interests

The marital status of a person seeking parenting Orders for a child is irrelevant in terms of the Court’s discretion. What is and will remain the paramount consideration for the Court is what is in each child’s best interest and whether they are safe.

To determine what is in the child’s best interests, the Court looks at a number of factors such as:

• the benefits of a child having a meaningful relationship with both its parents;
• protecting the child from abuse, neglect or psychological harm (this is of course given greatest weight);
• any views expressed by a child deemed mature enough to give an opinion;
• the involvement each parent has had with the child and their upbringing;
• the relationship the child has with extended family and siblings.

So whatever your views in this debate, when it comes to parenting Orders it is important to understand that the Court will always have a primary focus on the best interests of the child and ensuring that child is safe.

If you would like to know more about Parenting Orders, please contact our experienced Family Lawyers on (07) 3870 8244.

If a Contract of Sale is in place for a property, conditional or not, what happens if the buyer or seller passes away before settlement occurs?

Seller

In the event that the seller passes away before settlement, the Contract remains on foot and proceeds to settlement as normal. However, the rights that are usually afforded to the seller under the Contract pass instead to the seller’s personal representative (executor of the seller’s estate) who will then be entitled to receive payment of the balance of the purchase moneys on behalf of the estate.

Despite the Contract remaining on foot and proceeding to settlement, the buyer cannot be compelled to complete until the seller’s personal representative has obtained a grant of probate of the estate from the Supreme Court.

This is so that the seller’s personal representative can be formally appointed to administer the estate of the deceased. This process can take a few months.

Buyer

Similarly, in the event that the buyer passes away before settlement, the Contract will remain on foot and proceed to settlement. Once settlement has been effected, the property will form part of the buyer’s estate.

Once the buyer’s personal representative has obtained a grant of probate or letters of administration, the property will vest in their legal personal representative.

If the seller wishes to bring proceedings to enforce the Contract, the appropriate defendant is the legal personal representative of the buyer.

The common law position is enforced by the standard REIQ contract which states that a party to the contract includes that person’s executors, administrators and successors.

Issues

The main issues that arise when a party to a Contract passes away prior to settlement is the fact that the time limits under the Contract remain.

This means that, from a practical perspective, the deceased parties’ personal representatives/executors may not be in a position to settle on time which would give the other party a right to terminate.

This is particularly a problem when the deceased party is the buyer under the Contract and obtaining finance to complete the purchase. It is likely that the buyer’s personal representative will then have issues convincing the buyer’s financier to complete the purchase.

If the buyer was paying cash for the property prior to passing away, the Contract should be able to proceed to settlement without any timeframes creating a hurdle to completion.

In most circumstances an extension of time can be agreed upon.

If a seller who is terminally ill enters into a Contract of Sale for a property, a special condition should be inserted in the contract allowing for an extension of time if required so that the Contract can not be terminated by the other party or penalties imposed.

If you have any questions in relation to your Contract of Sale or require any special conditions to be drafted in the event of the death of a party, please contact our experienced Conveyancers and Property Lawyers today.

Bowen Hills Conveyancing – Brisbane Conveyancing – East Brisbane Conveyancing – Fortitude Valley Conveyancing – Herston Conveyancing – Highgate Hill Conveyancing – Kangaroo Point Conveyancing – Kelvin Grove Conveyancing – New Farm Conveyancing – Newstead Conveyancing – Paddington Conveyancing – Petrie Terrace Conveyancing  – Red Hill Conveyancing – South Brisbane Conveyancing – Spring Hill Conveyancing – Teneriffe Conveyancing – West End Conveyancing – Woolloongabba Conveyancing
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Balmoral Conveyancing – Belmont Conveyancing – Bulimba Conveyancing – Camp Hill Conveyancing – Cannon Hill Conveyancing – Carina Conveyancing – Carina Heights Conveyancing – Carindale Conveyancing – Chandler Conveyancing – Coorparoo Conveyancing – Gumdale Conveyancing – Hawthorne Conveyancing – Hemmant Conveyancing – Lota Conveyancing– Lytton Conveyancing – Manly Conveyancing – Manly West Conveyancing – Moreton Island Conveyancing – Morningside Conveyancing – Murarrie Conveyancing – Norman Park Conveyancing – Port of Brisbane Conveyancing – Ransome Conveyancing – Seven Hills Conveyancing – Tingalpa Conveyancing – Wakerley Conveyancing – Wynnum Conveyancing – Wynnum West Conveyancing
Anstead Conveyancing – Ashgrove Conveyancing – Auchenflower Conveyancing – Bardon Conveyancing – Bellbowrie Conveyancing – Brookfield Conveyancing – Chapel Hill Conveyancing – Chelmer Conveyancing – Chuwar Conveyancing – Corinda Conveyancing – Enoggera Conveyancing – Enoggera Reservoir Conveyancing – Fig Tree Pocket Conveyancing – Graceville Conveyancing – Indooroopilly Conveyancing – Jamboree Heights Conveyancing – Jindalee Conveyancing – Karana Downs Conveyancing – Kenmore Conveyancing – Kenmore Hills Conveyancing – Kholo Conveyancing – Lake Manchester Conveyancing – Middle Park Conveyancing – Milton Conveyancing – Moggill Conveyancing – Mount Coot-tha Conveyancing – Mount Crosby Conveyancing – Mount Ommaney Conveyancing – Oxley Conveyancing – Pinjarra Hills Conveyancing – Pullenvale Conveyancing – Riverhills Conveyancing – Seventeen Mile Rocks Conveyancing – Sherwood Conveyancing – Sinnamon Park Conveyancing – St Lucia Conveyancing – Taringa Conveyancing – The Gap Conveyancing – Toowong Conveyancing – Upper Brookfield Conveyancing – Upper Kedron Conveyancing – Westlake Conveyancing
Augustine Heights Conveyancing – Barellan Point Conveyancing – Basin Pocket Conveyancing – Bellbird Park Conveyancing – Blacksoil Conveyancing – Blackstone Conveyancing – Booval Conveyancing – Brassall Conveyancing – Brookwater Conveyancing – Bundamba Conveyancing – Camira Conveyancing – Carole Park Conveyancing – Churchill Conveyancing – Chuwar Conveyancing – Coalfalls Conveyancing – Collingwood Park Conveyancing– Dinmore Conveyancing – East Ipswich Conveyancing – Eastern Heights Conveyancing – Ebbw Vale Conveyancing – Flinders View Conveyancing – Gailes Conveyancing – Goodna Conveyancing – Ipswich Conveyancing – Karalee Conveyancing – Karrabin Conveyancing – Leichhardt Conveyancing – Moores Pocket Conveyancing – Muirlea Conveyancing – New Chum Conveyancing – Newtown Conveyancing – North Booval Conveyancing– North Ipswich Conveyancing – North Tivoli Conveyancing – One Mile Conveyancing – Raceview Conveyancing – Redbank Conveyancing – Redbank Plains Conveyancing – Riverview Conveyancing – Sadliers Crossing Conveyancing – Silkstone Conveyancing – Springfield Conveyancing – Springfield Central Conveyancing – Springfield Lakes Conveyancing – Tivoli Conveyancing – West Ipswich Conveyancing – Woodend Conveyancing – Wulkuraka Conveyancing – Yamanto Conveyancing
Amberley Conveyancing – Ashwell Conveyancing – Calvert Conveyancing – Deebing Heights Conveyancing – Ebenezer Conveyancing – Goolman Conveyancing – Grandchester Conveyancing – Haigslea Conveyancing – Ironbark Conveyancing – Jeebropilly Conveyancing – Lanefield Conveyancing – Marburg Conveyancing – Mount Forbes Conveyancing – Mount MarrowConveyancing – Mutdapilly Conveyancing – Pine Mountain Conveyancing – Purga Conveyancing – Ripley Conveyancing – Rosewood Conveyancing – South Ripley Conveyancing – Spring Mountain Conveyancing – Swanbank Conveyancing – Tallegalla Conveyancing – Thagoona – The Bluff Conveyancing – Walloon Conveyancing – White Rock Conveyancing – Willowbank Conveyancing – Woolshed Conveyancing
Bahrs Scrub Conveyancing – Bannockburn Conveyancing – Beenleigh Conveyancing – Belivah Conveyancing – Berrinba Conveyancing – Bethania Conveyancing – Boronia Heights Conveyancing – Browns Plains Conveyancing – Buccan Conveyancing – Carbrook Conveyancing – Cedar Creek Conveyancing – Cedar Grove Conveyancing – Cedar Vale Conveyancing – Chambers Flat Conveyancing – Cornubia Conveyancing – Crestmead Conveyancing – Daisy Hill Conveyancing – Eagleby Conveyancing – Edens Landing Conveyancing – Forestdale Conveyancing – Greenbank Conveyancing – Heritage Park Conveyancing – Hillcrest Conveyancing – Holmview Conveyancing – Jimboomba Conveyancing – Kagaru Conveyancing – Kingston Conveyancing – Logan Central Conveyancing – Logan Reserve Conveyancing – Logan Village Conveyancing – Loganholme Conveyancing – Loganlea Conveyancing – Lyons Conveyancing – Marsden Conveyancing – Meadowbrook Conveyancing – Mount Warren Park Conveyancing – Mundoolun Conveyancing – Munruben Conveyancing – New Beith Conveyancing – North Maclean Conveyancing – Park Ridge South Conveyancing – Park Ridge Conveyancing – Priestdale Conveyancing – Regents Park Conveyancing – Rochedale South Conveyancing – Shailer Park Conveyancing – Slacks Creek Conveyancing – South Maclean Conveyancing – Springwood Conveyancing – Stockleigh Conveyancing – Tamborine Conveyancing – Tanah Merah Conveyancing – Underwood Conveyancing – Undullah Conveyancing – Veresdale Scrub Conveyancing – Veresdale Conveyancing – Waterford West Conveyancing – Waterford Conveyancing – Windaroo Conveyancing – Wolffdene Conveyancing – Woodhill Conveyancing – Woodridge Conveyancing – Yarrabilba Conveyancing
Alexandra Hills Conveyancing – Amity Point Conveyancing – Birkdale Conveyancing – Capalaba Conveyancing – Cleveland Conveyancing – Coochiemudlo Island Conveyancing – Dunwich Conveyancing – Karragarra Island Conveyancing – Lamb Island Conveyancing – Macleay Island Conveyancing – Mount Cotton Conveyancing – North Stradbroke Island Conveyancing – Ormiston Conveyancing – Point Lookout Conveyancing – Redland Bay Conveyancing – Russell Island Conveyancing – Sheldon Conveyancing – Thorneside Conveyancing – Thornlands Conveyancing – Victoria Point Conveyancing – Wellington Point Conveyancing
Albany Creek Conveyancing – Arana Hills Conveyancing – Banksia Beach Conveyancing – Beachmere Conveyancing – Bellara Conveyancing – Bongaree Conveyancing – Bray Park Conveyancing – Brendale Conveyancing – Bunya Conveyancing – Burpengary Conveyancing – Caboolture Conveyancing – Caboolture South Conveyancing – Cashmere Conveyancing – Clontarf Conveyancing – Dakabin Conveyancing – Deception Bay Conveyancing – Eatons Hill Conveyancing – Elimbah Conveyancing – Everton Hills Conveyancing  – Ferny Hills Conveyancing – Godwin Beach Conveyancing – Griffin Conveyancing – Joyner Conveyancing – Kallangur Conveyancing – Kippa-Ring Conveyancing – Kurwongbah Conveyancing – Lawnton Conveyancing – Mango Hill Conveyancing – Margate Conveyancing – Moodlu Conveyancing – Morayfield Conveyancing – Murrumba Downs Conveyancing – Narangba Conveyancing – Newport Conveyancing – Ningi Conveyancing – North Lakes Conveyancing – Petrie Conveyancing – Redcliffe Conveyancing – Rothwell Conveyancing – Sandstone Point Conveyancing – Scarborough Conveyancing – Strathpine Conveyancing – Upper Caboolture Conveyancing – Warner Conveyancing – Whiteside Conveyancing – Woody Point Conveyancing – Woorim Conveyancing
Armstrong Creek Conveyancing – Bellmere Conveyancing – Bellthorpe Conveyancing – Booroobin Conveyancing – Bracalba Conveyancing – Camp Mountain Conveyancing – Campbells Pocket Conveyancing – Cedar Creek Conveyancing – Cedarton Conveyancing – Clear Mountain Conveyancing – Closeburn Conveyancing – Commissioners Flat Conveyancing – D’Aguilar Conveyancing – Dayboro Conveyancing – Delaneys Creek Conveyancing – Donnybrook Conveyancing – Draper Conveyancing – Highvale Conveyancing – Jollys Lookout Conveyancing – King Scrub Conveyancing – Kobble Creek Conveyancing – Laceys Creek Conveyancing – Meldale Conveyancing – Moorina Conveyancing – Mount Delaney Conveyancing – Mount Glorious Conveyancing – Mount Mee  Conveyancing – Mount Nebo Conveyancing – Mount Pleasant Conveyancing – Mount Samson Conveyancing – Neurum Conveyancing – Ocean View Conveyancing – Rocksberg Conveyancing – Rush Creek Conveyancing – Samford Valley Conveyancing – Samford Village Conveyancing – Samsonvale Conveyancing – Stanmore Conveyancing – Stony Creek Conveyancing – Toorbul Conveyancing – Wamuran Basin Conveyancing – Wamuran Conveyancing – Welsby Conveyancing – White Patch Conveyancing – Wights Mountain Conveyancing – Woodford Conveyancing – Yugar Conveyancing

It is becoming increasingly more common for relatives and friends to purchase real property together in order to gain entry into the property market because they would otherwise not have the financial resources to purchase the property on their own.

However, disputes can arise when one party wants to sell their share of the property but the other owners do not wish to sell or one party cannot “buy out” the other parties.

Under section 38 of the Property Law Act 1974 (Qld) (the Act), a co-owner may make an application to court, seeking the appointment of a statutory trustee to sell a property regardless of whether the other co-owners agree or not. This can occur when family members or friends buy real property together and then fall into dispute (please note this does not cover matrimonial property settlements which are dealt with under the Family Law Act).

If the co-owners cannot reach agreement on what to do with the property, or one co-owner cannot raise enough funds to buy out the other co-owner’s share, then you can compel the sale of the property under the Act.

The process is relatively straightforward and requires an application to the court supported by affidavit evidence and the consent of a statutory trustee. Usually statutory trustees will be solicitors or accountants who will act to sell the property.

Once appointed, the statutory trustees can sell the property either by auction or private treaty.  The statutory trustee will undertake research to determine the market value of the property and decide on the best method of sale to be utilised to gain the best price for the property at the time. A real estate agent may also be appointed to sell the property.

Once sold, any parties owed funds will be paid from the proceeds of sale (i.e. mortgagees, solicitor’s fees and real estate agent’s commission).  Any funds left over will then be divided between the co-owners in proportion of their ownership.

What happens if one co-owner is residing in the property and won’t leave?

Often in the cases of co-ownership, one owner resides at the property in question and is the party refusing to sell, given the disruption it would cause for them to vacate the property.

In the event that this party disputes the sale and refuses to vacate the property, the statutory trustee, once appointed, will obtain an order for possession of the property from the court. The statutory trustee will then serve this order on the owner residing at the property, giving them a timeframe in which the property is to be sold.

If this party still refuses to leave the property, the statutory trustee will then obtain a warrant for possession and a bailiff will remove the person from the property (and will then be left to clear their belongings before the property is placed on the market).

Can the appointment of the statutory trustee be disputed?

A section 38 application for the appointment for a statutory trustee is very difficult to oppose and usually the court will grant the appointment of the statutory trustee, which will then allow the sale of the property.

However the following grounds provide bases for opposing the appointment of a statutory trustee:

• One of the co-owners holds the property in their capacity as a trustee as evidenced by a written trust document dealing proving the entitlement to the property.  For example, a person may remarry and hold the property on trust for their children.
• If there is an agreement in place between the co-owners that deals with how the property is to be sold in the future.  For example, there may be an agreement giving a co-owner a first right of refusal, or requiring a certain period of time, i.e. 12 months to pass before the property can be sold (in order to allow time to raise sufficient finance to buy out the other party’s share).
• The argument that one co-owner has exhausted their share in the property and no longer has any right to claim to have an interest in the property.  For example, is a co-owner takes out a mortgage against the property for their own benefit and then does not repay that money.
• The equity of exoneration –  for example, a first co-owner takes out a second mortgage against the property to start a new business; the other co-owners have no interest in or benefit from the business.  The business then fails, and the first co-owner is declared a bankrupt. That co-owner’s bankruptcy trustee may seek to sell the house to pay the debt.  The remaining owners may be able to argue that only the first co-owner should bear the burden of the debt, and they should be exonerated from it.

In any case there can be no guarantee that the appointment of the statutory trustee (and subsequent sale of the property) will not go ahead. Much depends on the factual background and evidence to be presented, however these applications are almost impossible to defend.

If you are considering buying real property with others, you should give consideration to what is to happen should the relationship sour or one co-owner wants to sell. A properly drafted agreement recording the co-owners’ rights and obligations could potentially save a lot of long term difficulties.

If you require advice in respect of forcing the sale of your co-owned property, or defending a s38 Application for the appointment of a statutory trustee that has been served upon you, please contact us.

Bowen Hills Conveyancing – Brisbane Conveyancing – East Brisbane Conveyancing – Fortitude Valley Conveyancing – Herston Conveyancing – Highgate Hill Conveyancing – Kangaroo Point Conveyancing – Kelvin Grove Conveyancing – New Farm Conveyancing – Newstead Conveyancing – Paddington Conveyancing – Petrie Terrace Conveyancing  – Red Hill Conveyancing – South Brisbane Conveyancing – Spring Hill Conveyancing – Teneriffe Conveyancing – West End Conveyancing – Woolloongabba Conveyancing
Albion Conveyancing – Alderley Conveyancing – Ascot Conveyancing – Aspley Conveyancing – Bald Hills Conveyancing – Banyo Conveyancing – Boondall Conveyancing – Bracken Ridge Conveyancing – Bridgeman Downs Conveyancing – Conveyancing –  Brighton Conveyancing – Brisbane Airport Conveyancing – Carseldine Conveyancing – Chermside Conveyancing – Chermside West Conveyancing – Clayfield Conveyancing – Deagon Conveyancing – Eagle Farm Conveyancing  – Everton Park Conveyancing – Ferny Grove Conveyancing – Fitzgibbon Conveyancing – Gaythorne Conveyancing – Geebung Conveyancing – Gordon Park Conveyancing – Grange Conveyancing – Hamilton Conveyancing – Hendra Conveyancing – Kalinga Conveyancing – Kedron Conveyancing – Keperra Conveyancing – Lutwyche Conveyancing – McDowall Conveyancing – Mitchelton Conveyancing – Myrtletown Conveyancing – Newmarket Conveyancing – Northgate Conveyancing – Nudgee Conveyancing – Nudgee Beach Conveyancing – Nundah Conveyancing – Pinkenba Conveyancing – Sandgate Conveyancing – Shorncliffe Conveyancing – Stafford Conveyancing – Stafford Heights Conveyancing – Taigum Conveyancing – Virginia Conveyancing – Wavell Heights Conveyancing – Wilston Conveyancing – Windsor Conveyancing – Wooloowin Conveyancing – Zillmere Conveyancing
Acacia Ridge Conveyancing – Algester Conveyancing – Annerley Conveyancing – Archerfield Conveyancing – Burbank Conveyancing – Calamvale Conveyancing – Coopers Plains Conveyancing– Darra Conveyancing – Doolandella Conveyancing – Drewvale Conveyancing– Durack Conveyancing – Dutton Park Conveyancing – Eight Mile Plains Conveyancing – Ellen Grove Conveyancing – Fairfield Conveyancing – Forest Lake Conveyancing – Greenslopes Conveyancing – Heathwood Conveyancing – Holland Park Conveyancing – Holland Park West Conveyancing – Inala Conveyancing – Karawatha Conveyancing – Kuraby Conveyancing – Larapinta Conveyancing – MacGregor Conveyancing – Mackenzie Conveyancing – Mansfield Conveyancing – Moorooka Conveyancing – Mount Gravatt Conveyancing – Mount Gravatt East Conveyancing – Nathan Conveyancing – Pallara Conveyancing – Parkinson Conveyancing – Richlands Conveyancing – Robertson Conveyancing – Rochedale Conveyancing – Rocklea Conveyancing – Runcorn Conveyancing – Salisbury Conveyancing – Seventeen Mile Rocks Conveyancing – Sinnamon Park Conveyancing – Stones Corner Conveyancing – Stretton Conveyancing – Sumner Conveyancing – Sunnybank Conveyancing – Sunnybank Hills Conveyancing – Tarragindi Conveyancing – Tennyson Conveyancing – Upper Mount Gravatt Conveyancing – Wacol Conveyancing – Willawong Conveyancing – Wishart Conveyancing – Yeerongpilly Conveyancing – Yeronga Conveyancing
Balmoral Conveyancing – Belmont Conveyancing – Bulimba Conveyancing – Camp Hill Conveyancing – Cannon Hill Conveyancing – Carina Conveyancing – Carina Heights Conveyancing – Carindale Conveyancing – Chandler Conveyancing – Coorparoo Conveyancing – Gumdale Conveyancing – Hawthorne Conveyancing – Hemmant Conveyancing – Lota Conveyancing– Lytton Conveyancing – Manly Conveyancing – Manly West Conveyancing – Moreton Island Conveyancing – Morningside Conveyancing – Murarrie Conveyancing – Norman Park Conveyancing – Port of Brisbane Conveyancing – Ransome Conveyancing – Seven Hills Conveyancing – Tingalpa Conveyancing – Wakerley Conveyancing – Wynnum Conveyancing – Wynnum West Conveyancing
Anstead Conveyancing – Ashgrove Conveyancing – Auchenflower Conveyancing – Bardon Conveyancing – Bellbowrie Conveyancing – Brookfield Conveyancing – Chapel Hill Conveyancing – Chelmer Conveyancing – Chuwar Conveyancing – Corinda Conveyancing – Enoggera Conveyancing – Enoggera Reservoir Conveyancing – Fig Tree Pocket Conveyancing – Graceville Conveyancing – Indooroopilly Conveyancing – Jamboree Heights Conveyancing – Jindalee Conveyancing – Karana Downs Conveyancing – Kenmore Conveyancing – Kenmore Hills Conveyancing – Kholo Conveyancing – Lake Manchester Conveyancing – Middle Park Conveyancing – Milton Conveyancing – Moggill Conveyancing – Mount Coot-tha Conveyancing – Mount Crosby Conveyancing – Mount Ommaney Conveyancing – Oxley Conveyancing – Pinjarra Hills Conveyancing – Pullenvale Conveyancing – Riverhills Conveyancing – Seventeen Mile Rocks Conveyancing – Sherwood Conveyancing – Sinnamon Park Conveyancing – St Lucia Conveyancing – Taringa Conveyancing – The Gap Conveyancing – Toowong Conveyancing – Upper Brookfield Conveyancing – Upper Kedron Conveyancing – Westlake Conveyancing
Augustine Heights Conveyancing – Barellan Point Conveyancing – Basin Pocket Conveyancing – Bellbird Park Conveyancing – Blacksoil Conveyancing – Blackstone Conveyancing – Booval Conveyancing – Brassall Conveyancing – Brookwater Conveyancing – Bundamba Conveyancing – Camira Conveyancing – Carole Park Conveyancing – Churchill Conveyancing – Chuwar Conveyancing – Coalfalls Conveyancing – Collingwood Park Conveyancing– Dinmore Conveyancing – East Ipswich Conveyancing – Eastern Heights Conveyancing – Ebbw Vale Conveyancing – Flinders View Conveyancing – Gailes Conveyancing – Goodna Conveyancing – Ipswich Conveyancing – Karalee Conveyancing – Karrabin Conveyancing – Leichhardt Conveyancing – Moores Pocket Conveyancing – Muirlea Conveyancing – New Chum Conveyancing – Newtown Conveyancing – North Booval Conveyancing– North Ipswich Conveyancing – North Tivoli Conveyancing – One Mile Conveyancing – Raceview Conveyancing – Redbank Conveyancing – Redbank Plains Conveyancing – Riverview Conveyancing – Sadliers Crossing Conveyancing – Silkstone Conveyancing – Springfield Conveyancing – Springfield Central Conveyancing – Springfield Lakes Conveyancing – Tivoli Conveyancing – West Ipswich Conveyancing – Woodend Conveyancing – Wulkuraka Conveyancing – Yamanto Conveyancing
Amberley Conveyancing – Ashwell Conveyancing – Calvert Conveyancing – Deebing Heights Conveyancing – Ebenezer Conveyancing – Goolman Conveyancing – Grandchester Conveyancing – Haigslea Conveyancing – Ironbark Conveyancing – Jeebropilly Conveyancing – Lanefield Conveyancing – Marburg Conveyancing – Mount Forbes Conveyancing – Mount MarrowConveyancing – Mutdapilly Conveyancing – Pine Mountain Conveyancing – Purga Conveyancing – Ripley Conveyancing – Rosewood Conveyancing – South Ripley Conveyancing – Spring Mountain Conveyancing – Swanbank Conveyancing – Tallegalla Conveyancing – Thagoona – The Bluff Conveyancing – Walloon Conveyancing – White Rock Conveyancing – Willowbank Conveyancing – Woolshed Conveyancing
Bahrs Scrub Conveyancing – Bannockburn Conveyancing – Beenleigh Conveyancing – Belivah Conveyancing – Berrinba Conveyancing – Bethania Conveyancing – Boronia Heights Conveyancing – Browns Plains Conveyancing – Buccan Conveyancing – Carbrook Conveyancing – Cedar Creek Conveyancing – Cedar Grove Conveyancing – Cedar Vale Conveyancing – Chambers Flat Conveyancing – Cornubia Conveyancing – Crestmead Conveyancing – Daisy Hill Conveyancing – Eagleby Conveyancing – Edens Landing Conveyancing – Forestdale Conveyancing – Greenbank Conveyancing – Heritage Park Conveyancing – Hillcrest Conveyancing – Holmview Conveyancing – Jimboomba Conveyancing – Kagaru Conveyancing – Kingston Conveyancing – Logan Central Conveyancing – Logan Reserve Conveyancing – Logan Village Conveyancing – Loganholme Conveyancing – Loganlea Conveyancing – Lyons Conveyancing – Marsden Conveyancing – Meadowbrook Conveyancing – Mount Warren Park Conveyancing – Mundoolun Conveyancing – Munruben Conveyancing – New Beith Conveyancing – North Maclean Conveyancing – Park Ridge South Conveyancing – Park Ridge Conveyancing – Priestdale Conveyancing – Regents Park Conveyancing – Rochedale South Conveyancing – Shailer Park Conveyancing – Slacks Creek Conveyancing – South Maclean Conveyancing – Springwood Conveyancing – Stockleigh Conveyancing – Tamborine Conveyancing – Tanah Merah Conveyancing – Underwood Conveyancing – Undullah Conveyancing – Veresdale Scrub Conveyancing – Veresdale Conveyancing – Waterford West Conveyancing – Waterford Conveyancing – Windaroo Conveyancing – Wolffdene Conveyancing – Woodhill Conveyancing – Woodridge Conveyancing – Yarrabilba Conveyancing
Alexandra Hills Conveyancing – Amity Point Conveyancing – Birkdale Conveyancing – Capalaba Conveyancing – Cleveland Conveyancing – Coochiemudlo Island Conveyancing – Dunwich Conveyancing – Karragarra Island Conveyancing – Lamb Island Conveyancing – Macleay Island Conveyancing – Mount Cotton Conveyancing – North Stradbroke Island Conveyancing – Ormiston Conveyancing – Point Lookout Conveyancing – Redland Bay Conveyancing – Russell Island Conveyancing – Sheldon Conveyancing – Thorneside Conveyancing – Thornlands Conveyancing – Victoria Point Conveyancing – Wellington Point Conveyancing
Albany Creek Conveyancing – Arana Hills Conveyancing – Banksia Beach Conveyancing – Beachmere Conveyancing – Bellara Conveyancing – Bongaree Conveyancing – Bray Park Conveyancing – Brendale Conveyancing – Bunya Conveyancing – Burpengary Conveyancing – Caboolture Conveyancing – Caboolture South Conveyancing – Cashmere Conveyancing – Clontarf Conveyancing – Dakabin Conveyancing – Deception Bay Conveyancing – Eatons Hill Conveyancing – Elimbah Conveyancing – Everton Hills Conveyancing  – Ferny Hills Conveyancing – Godwin Beach Conveyancing – Griffin Conveyancing – Joyner Conveyancing – Kallangur Conveyancing – Kippa-Ring Conveyancing – Kurwongbah Conveyancing – Lawnton Conveyancing – Mango Hill Conveyancing – Margate Conveyancing – Moodlu Conveyancing – Morayfield Conveyancing – Murrumba Downs Conveyancing – Narangba Conveyancing – Newport Conveyancing – Ningi Conveyancing – North Lakes Conveyancing – Petrie Conveyancing – Redcliffe Conveyancing – Rothwell Conveyancing – Sandstone Point Conveyancing – Scarborough Conveyancing – Strathpine Conveyancing – Upper Caboolture Conveyancing – Warner Conveyancing – Whiteside Conveyancing – Woody Point Conveyancing – Woorim Conveyancing
Armstrong Creek Conveyancing – Bellmere Conveyancing – Bellthorpe Conveyancing – Booroobin Conveyancing – Bracalba Conveyancing – Camp Mountain Conveyancing – Campbells Pocket Conveyancing – Cedar Creek Conveyancing – Cedarton Conveyancing – Clear Mountain Conveyancing – Closeburn Conveyancing – Commissioners Flat Conveyancing – D’Aguilar Conveyancing – Dayboro Conveyancing – Delaneys Creek Conveyancing – Donnybrook Conveyancing – Draper Conveyancing – Highvale Conveyancing – Jollys Lookout Conveyancing – King Scrub Conveyancing – Kobble Creek Conveyancing – Laceys Creek Conveyancing – Meldale Conveyancing – Moorina Conveyancing – Mount Delaney Conveyancing – Mount Glorious Conveyancing – Mount Mee  Conveyancing – Mount Nebo Conveyancing – Mount Pleasant Conveyancing – Mount Samson Conveyancing – Neurum Conveyancing – Ocean View Conveyancing – Rocksberg Conveyancing – Rush Creek Conveyancing – Samford Valley Conveyancing – Samford Village Conveyancing – Samsonvale Conveyancing – Stanmore Conveyancing – Stony Creek Conveyancing – Toorbul Conveyancing – Wamuran Basin Conveyancing – Wamuran Conveyancing – Welsby Conveyancing – White Patch Conveyancing – Wights Mountain Conveyancing – Woodford Conveyancing – Yugar Conveyancing

By now most of you would have received your postal vote forms in the mail, heard campaigns on the television, debates on the radio and received campaign materials in the mail or in public places. Regardless of your view, it is important during this time, to reflect on our current family law system and the impact legalising same sex marriages may have on that system moving forward.

The Definition of Marriage

The greatest impact legalising same-sex marriage will have revolves around the definition of “marriage” and therefore the question of who is able to marry in Australia pursuant to the Marriage Act 1961 (Cth). This is most certainly a hot topic of debate at the moment.

Currently the definition of “marriage” in the Marriage Act 1961 (Cth) is the union of a man and women to the exclusion of all others, voluntarily entered into for life. Obviously, if same sex marriage is legalised that definition will likely change to include the union of people who are in a same sex relationship.

Primarily the postal vote is centered on this very issue.

The Ability to Divorce

Property and Children Disputes

The laws enabling a person to make an application to the Family or Federal Circuit Court for property or children’s Orders will not need any real change. The Family Law Act 1975 (Cth) already allows parties to a marriage or de facto relationship to apply for property settlement and/or parenting Orders following separation.

Same sex couples already fall within the definition of a “de facto relationship” and therefore already have the ability to seek such Orders from the Court.

This means that legalising same sex marriages will have no real impact on the ability to seek Orders about parenting or property matters so long as persons to a same sex relationship can establish, just like heterosexual couples, that they had been a couple living together on a genuine domestic basis.

The Impact on Adoption

And then one most consider the ability for same sex couples to express interest in adopting a child in Queensland.

From 2009 until November 2016, same sex and de facto couples were not able to express interest in adopting a child in Queensland. This all changed in November 2016 when the eligibility criteria were extended by the Queensland Government.

Accordingly, legalising same sex marriage will have little impact on the ability of a same sex couple to adopt a child in Queensland provided they meet the eligibility requirements and criteria.

So regardless of your views and beliefs, it is important that you make an informed decision with an understanding of how the changes will impact on the current Family Law System.

If you need assistance with your separation or divorce matters, please contact our experienced family lawyers on (07) 3870 8244.

A common question we are asked by clients who are making a Will is: “what happens if we die at the same time?” or “what happens if we die in the same accident?”. This can refer to the simultaneous death of spouses or business partners or even beneficiaries.

The order in which married couples die is an important consideration, particularly in cases of blended families where one spouse’s Will may not mirror that of the other.

The simple answer to this question is that the Will of the first to die takes first effect.

Depending on what the Will of the first to die says, their estate may pass to the second to die or may bypass the spouse and go to children or step-children.

Whilst the order of death will not be relevant where the Wills mirror each other’s, the order of death will be particularly relevant if the Wills of couples are not identical. The order of death may create an injustice because the parties may have anticipated that the younger person would survive the older person and have made Wills accordingly.

In some cases it may be possible to determine the order of the deaths if one or more were alive when found or hospitalised before they passed away. However, determining which person passed away first will be more complicated where both parties passed simultaneously.

In the situation where both parties died simultaneously in an accident or were found deceased together then the legislation deems that the oldest person died first. This has obvious effects on how the Wills of the individuals are treated as well as any business succession agreements are interpreted. This needs to be taken into consideration when succession planning, rather than simply assuming that the older spouse/partner will pass away first.

One of the ways to overcome this sort of difficulty is to provide in Wills that for example, “I leave everything to my Wife if she survives me by 30 days”. This is known as a “Titanic clause”. Generally, if people are going to die from an accident they will do so within that short period of time. That avoids the confusion that might arise through simultaneous or uncertain order of death and also avoids the need to pass everything from one estate to the estate of another person who has already died.

If you have any questions in relation to succession planning upon simultaneous deaths or need to update your Will to allow for this situation, please contact us on 3870 8244 to discuss your succession planning needs.

Work Licence Applications

If you are charged with drink or drug driving offences, you may be eligible for a Work Licence which will allow you to drive for the purposes of your employment.

In order to be eligible for a Work Licence you must prove to the Court that if you are not granted a Work Licence you will lose your job, which will cause you extreme hardship and that you are a fit and proper person to hold a Work Licence.

Are you eligible for a Work Licence?

To be eligible to apply for a Work Licence in Queensland all of the following circumstances must apply:

• At the time of applying for a Work Licence you hold a current Queensland provisional or open driver licence;

• At the time of the offence you held a current Queensland provisional or open driver licence;

• You were not driving in the course of your employment at the time of the offence;

• You have not, in the last five years, been convicted anywhere of a drink driving offence or similar offence, or failing to provide a specimen of breath or blood;

• You have not, in the last five years, been disqualified from holding a licence, had your licence disqualified, suspended or cancelled in Queensland (not including disqualification for mental or physical handicap, or suspension for non-payment of fines and penalties, or offences later set aside on appeal);

• You have not been convicted of dangerous driving in Queensland in the last five years;

• Your blood alcohol concentration level was below 0.15%; and

• You were not driving under a licence that required your blood alcohol concentration to be zero at the time of the offence.

In order to be eligible for a Work Licence you must prove to the Court:

• That if you are not granted a Work Licence you will lose your job, which will cause extreme hardship for yourself and your family; and

• That you are a fit and proper person to hold a Work Licence.

Are you excluded from holding a Work Licence?

You cannot apply for a Work Licence if at the time of the offence:

• You were driving a motor vehicle that you were not authorised to drive under an open or provisional licence;

• You were under 25, on a provisional licence or learners permit and your blood alcohol concentration level exceeded 0% or you had illegal drugs in your system;

• you are unemployed;

• Being without licence will cause you inconvenience only;

• You were under the influence of drugs.

Will your Work Licence be restricted?

The Court may grant you a Work Licence but impose restrictions on you, such as the times when you may drive, the purposes for which you may drive, the class of vehicle you may drive and the carrying of passengers in the vehicle.

Disqualification Period

Ordinarily, Work Licences are issued for the entire period of your disqualification. If you apply for and are granted a Work Licence the Court may elect to double the disqualification period you would have received had you not received the Work Licence.

When should you apply for a Work Licence?

Applications for Work Licences must be made to the Court that will hear your drink or drug driving charge and must be made before you have been found guilty of the offence.

When will your application be heard?

At the first court appearance you should advise the Magistrate that you wish to apply for a Work Licence. The Magistrate will then set a time and date for your application to be heard.

It is possible that you or your employer may be called to give evidence in the witness box before the Magistrate regarding any of the matters disclosed in your affidavits.

Do you need a lawyer?

Whilst you can complete the documentation, submit it yourself and also appear in court on your own behalf – and whilst appearing biased – we recommend that you engage a solicitor to assist you.

Remember that you are only able to apply for a work licence once on the day of your hearing. Improperly prepared affidavits, incorrect forms, or poor representation on the day may lead to extended disqualification periods, larger fines, insufficient or improper work licence terms, or the rejection of your work licence application.

Allowing a solicitor experienced in work licence applications to guide you through the process affords peace of mind and may make the difference that allows you to keep working through your disqualification period.

Lockett McCullough Lawyers can assist you with your Work Licence application by appearing for you in Court and also by preparing all of the documentation required for your application. This includes:

• An affidavit from yourself addressing your work, financial, driving and personal circumstances – unless already included in the QP9 (police report), you should also exhibit your traffic and criminal history;
• An affidavit from your employer addressing the necessity of a Work Licence to your job and the consequences of you not obtaining a Work Licence;
• An Application for an Order directing the issue of a Restricted Licence.

Alternatively, if you wish to prepare the documents yourself, we are happy to peruse your documents and make recommendations in order to reduce your costs.

Please contact us today if you require any further information or assistance with your Work Licence Application.

Obtaining a Grant of Probate from the Supreme Court is one of the main tasks that an executor of an estate can undertake. However, it is not just time consuming, it can also be a costly exercise as well. By the time advertising fees are paid for and solicitor’s fees and Supreme Court filing fees are paid, the estate can usually expect to lose a few thousand dollars.

However, sometimes it is not necessary to apply for a Grant of Probate when you are dealing with a deceased estate. That being the case, it is important to discuss the assets and liabilities of the estate with your solicitor to work out whether or not it is needed.

Why is Probate needed?

 The main reason why Probate is needed is that some entities that hold the deceased’s assets or maintain registers that record title to such assets, will not release these assets or record a transfer to the executor for distribution to the beneficiaries unless they have obtained a certified copy of the grant of probate from the Supreme Court. These can include but are not limited to financiers, super funds, insurance companies, the local council and utilities companies and the like. Retirement villages will almost always require a Grant of Probate to release the deceased’s exit entitlement.

We can help you to quickly identify whether you need to spend the time and cost to get a Grant of Probate, or whether the estate can be administered without going to the effort and expense.

When is Probate Unnecessary?

Whilst Probate is more often than not required when administering an estate, there are circumstances where it will not be needed, which we will outline below:

Property held as Joint Tenants

 Probate will not be required for any of the deceased’s assets that are held as ‘joint tenants’ with another person, (as opposed to ‘tenants in common’).  For example, it is common for people to own their family home as joint tenants with their spouse.  The deceased’s interest in the jointly held asset will technically not form part of the deceased’s estate and will instead pass to the ‘surviving joint tenant’, without probate being required.

For example, if a wife dies (and is survived by her husband), and her bank accounts, motor vehicles and family home are all held in joint names (as joint tenants), probate will not be required.

It is important to note that if property is held as tenants-in-common, the deceased’s share in that property will form part of their estate and probate will be required. This is because the deceased’s interest does not naturally pass to the other registered owner (which is the rule of survivorship). Real property owned other than as joint tenants will always require probate, no matter what the proportion of ownership may be.

Low value assets

An Executor of an estate can also generally avoid the need to obtain probate when the only assets of the deceased are of a low value, such as small share parcels or bank accounts.

Whilst every financial institution will have a different threshold as to the amount they will accept before Probate is required to release the funds, the general amount is usually a balance of somewhere in the vicinity of $20,000.00 – $50,000.00.

Each financial institution and share registry has its own low-value “cap” being the value that the asset must reach before it considers that probate or letters of administration are required to transfer ownership of the asset. Usually the calculation of the “cap” will exclude the value deceased’s principal place of residence.

From our experience, we are aware of the following thresholds for each major bank (which are subject to change at the discretion of the bank):

Suncorp Bank – $50,000;

Commonwealth Bank – $50,000;

ANZ Bank – $80,000; NAB – $50,000;

Westpac – $50,000; BOQ  – up to $75,000 on conditional circumstances;

Bendigo Bank – $50,000; and

CUA – $15,000

In order to transfer low-value assets it is generally necessary to establish that you would be the person administering the estate if probate were granted (e.g. by providing a certified copy of the Will), and that the owner has died (by means of producing the Death Certificate).

Financial institutions will usually require the executor named in the deceased’s last Will to sign an indemnity and release form which indemnifies that institution against any claims on the estate.

It is also important to note that even if an executor is successful with having estate funds released without obtaining a Grant of Probate, a cheque may issue in the name of the estate, eg “Estate of A Smith”. Unfortunately many banks will not allow the deposit of such cheques until a bank account is opened in the name of the estate and the opening of this account will usually require a Grant of Probate.

Intestacy

‘Probate’ is the process by which the Supreme Court gives the executors of an estate the power to distribute assets to beneficiaries.

However, in cases of intestacy if the deceased does not have a Will (also referred to as having died “intestate”), you do not need a grant of Probate.  You will instead need to apply to the Supreme Court for ‘Letters of Administration’. This is essentially the same process as obtaining a Grant of Probate, and with the same advertising process and similar forms to be completed, but it is slightly more onerous.

Letters of Administration will also be required where the deceased has left a Will, but the executors named in the last will have already passed away or unable or unwilling to act as the executor’s of the deceased’s estate.

In this case, another person (known as the ‘administrator’) , will apply to the Supreme Court for Letters of Administration to be given the legal authority to administer the deceased person’s estate in lieu of the executors named in the Will. Again, it is a very similar process to obtaining a Grant of Probate, but slightly more onerous.

If your loved one has died intestate, please contact us and we would be happy to assist you with obtaining a grant of Letters of Administration.

How can I work out if Probate is needed? 

In order to decide whether a grant of Probate or Letters of Administration are required, we recommend following the steps outlined below:

1. Compiling a list of Assets and Liabilities

 Firstly, it is necessary to identify all the assets owned in the deceased’s name and all liabilities of the estate, and record: 

• How they are held (e.g. solely, jointly, as tenants in common, etc);
• Where they are held (e.g. the name of the bank, the share register, the relevant Lands Titles Office, etc);
• *The current market value of each asset; and
• Whether there are any associated liabilities.

*Depending on how the assets are to later be dealt with, it may be necessary to obtain a formal valuation. For example, if the deceased has left their property to their two children in equal shares, but one child wants to buy the other out, a valuation will be required.

2. Transfer property held as Joint Tenants

 If assets are held as joint tenants, it may be necessary to lodge a ‘Request to Record Death’ with the Land Titles Office or various registries to record the passing of the joint interest to the surviving owner. In the case of real property, this will only require a certified copy of the death certificate to be provided.

3. Contact institutions where property held solely or as Tenants in Common

 If some assets are held in the sole name of the deceased, or as tenants in common (as opposed to joint tenants), then each organisation where those assets are held should be contacted to determine their ‘deceased estate transfer policy’.

If the value of the assets held with each institution are under their low value threshold or cap, then Probate or Letters of Administration should not be required.

The assets can generally be dealt with by providing the following documents to each institution where assets are held (eg. a bank, a share registry):

The Death Certificate; and

• A copy of the Will (if there is one);
• Certified copy of identification for the Executor;
• Some form of Indemnity and Release document completed by the Executor.

If you think that the value of the assets of the deceased are on the ‘borderline’ so to speak of requiring or not requiring a grant of Probate, it can be useful for your solicitor to also send an accompanying cover letter with the above forms providing a persuasive argument as to why the assets should be released without Probate. Arguments such as:

The deceased has few other assets;

• That institution would be the only institution requiring probate
• The estate is small and having to obtain probate would be costly
• The deceased left their estate to each of their children in equal shares;
• The beneficiaries all get along
• There are no claims being made against the estate,

can be persuasive arguments to convince the institution that Probate should not be require to release assets. Please contact us if you require us to liaise with an organisation and put forward a case as to why estate assets should be released without Probate.

 4. Obtain Probate if required

 If the estate includes real estate (e.g. a family home), and the real estate is not held in joint names or the institutions referred to in above Step 3 deny your request for a waiver of the requirement for Probate, then Probate (or Letters of Administration) will be required before the land can be transferred to the appropriate beneficiary.

This is because the land titles office will not anyone to deal with the property until they have the appropriate authority in the form of a grant of Probate. The main reason for this requirement is so that that institution can not be held liable for transferring or distributing estate assets to the Executor without formal approval being granted by the Supreme Court and so that the institution is not held liable for these things in the event that the estate is challenged.

If you do require a Grant of Probate or Letters of Administration, please contact us and we would be happy to assist you obtain a Grant or administer the estate.