FAQs

FAQs should not be relied upon as legal advice. Any advice is general in nature.

Frequently Asked Questions

  1. 1
    Do I need a will?

    The only way to have your say on how your estate will be distributed is by writing a valid will. It can be a simple document that leaves all to your partner and then equally to the children. You may want to add gifts to certain people.

    Sometimes life is more complicated. Your will may leave a life interest in your home to a person to ensure that they have somewhere to live. It is possible to give a life interest in your entire estate allowing income to pass to one or more people but protecting the capital for your ultimate beneficiaries who may be your children or grandchildren.

    Testamentary discretionary trusts can also be worthwhile option depending on one’s circumstances. Most importantly, your will should reflect your wishes. From simple wills to complex wills Clarke & Barwood Lawyers can help.

  2. 2
    Do I need Powers of Attorney?

    Powers of attorney allow others to act on your behalf. There are two types or enduring powers of attorney:

    Enduring Power of Attorney (Financial & Personal)

    You may appoint one or more people (up to four) as your attorney and you may appoint alternative attorneys.

    The power may begin immediately, on loss of capacity or at another time.

    The power may be for personal or financial matters or both.

    It is important to understand the extent of the power being given and the risks involved.  

    Enduring Power of Attorney (Medical)

    When you are unable to make a medical decision your medical Agent can make that decision on your behalf. You may appoint one person as your agent and a second person as your alternative agent.

    When making powers of attorney, the address of your attorneys is required

  3. 3
    What does and Executor do?

    The Executor of a will is responsible for the administration of the estate. Duties may include:

    Organising the funeral

    Organising the death certificate

    Administration of the Estate (and keeping a proper account of the administration)

    Where there is no will, an Administrator may be appointed. Usually, the Administrator is the person with the greatest interest in the estate either by the will or under the laws of intestacy.

    An Executor has many responsibilities and may be liable if anything goes wrong such as debts or taxes not paid. It is important to get proper advice.

    If you are concerned about the administration of an estate and what to do, we can help.

  4. 4
    What is Intestacy?

    When a person dies with no will the laws of intestacy apply. The person is said to have died “intestate”. The rules of intestacy are found in Part IA of the Administration and Probate Act 1958. The rules can be confusing and the order of distribution will change depending on the relationships existing at the date of death.

    As a general rule, under intestacy, an estate will pass to a partner (no children) or between a partner and children of the deceased. There is also provision at each level where there was more than one partner. Where there is no partner and no children (or grandchildren) then the estate may pass to the parent(s). It may then pass to siblings (with their children by substitution) and if none then to grandparents, then to aunts and uncles and cousins. If there are no relatives beyond cousins, the estate may pass to the Crown.

    If you have questions about intestacy, come and see us at Clarke and Barwood Lawyers.

  5. 5
    What is Probate?

    A Grant of Probate is an official document sealed by the Supreme Court of Victoria. It is granted on application to the Court provided that the Court is satisfied that the will was the last will, was valid

    Often, for small estates, probate is not required. A copy of the will and the death certificate may suffice to transfer a car, close a bank account or deal with any number of items of personal property. Jointly held property does not require probate.

    Bank accounts or other investments may require probate to be released. Each institution has different requirements –some requiring probate for amounts exceeding $15,000 and other requiring probate for amounts exceeding $70,000 or more. Dealings in real property (transfer of a block of land or a house) always require probate.

  6. 6
    Can a will be contested?

    Until 2015 anyone could contest a will. New laws in 2015 narrowed the class of eligible people. Eligible people now include:

    A spouse or partner

    A child or step-child

    A purported child

    A former spouse or partner (no property settlement)

    A grandchild

    A spouse or partner of a child (who died within one year of the deceased)

    A member of the deceased’s household

    An eligible person may be able to contest the will and success will depend on a number of factors such as obligations to the eligible person, the size of the estate, financial resources and needs of the eligible person and the other beneficiaries, etc.

    If you need advice on contesting a will, call us at Clarke & Barwood Lawyers.

  7. 7
    What is conveyancing?

    Conveyancing is the process of legally transferring land from one person to another.

    Experienced legal advice is essential as the procedures and requirements continually change. We can assists with all aspects of conveyancing and provide timely advise in relation to issues such as:

    Vendor’s Statement

    Pest and building inspections

    Bank Guarantees

    Contractual Guarantees

    Covenants and easements

  8. 8
    What is Electronic Conveyancing?

    Land transactions in Victoria are quickly moving from the traditional style of paper based transactions to electronic transactions which are done online through PEXA.

  9. 9
    What is a debt agreement?

    Often when people lend or borrow money it is done on trust, particularly with family members. Documenting the transaction in a formal debt agreement is important for a number of reasons:

    It provides written evidence if things go wrong later

    When disagreements arise, each person may have a different idea as to what was agreed

    On the death of the lender or the borrower, the estate needs to know what was agreed.

  10. 10
    Family Law

    Can I get divorced?

    You can apply for a divorce once you have been separated for at least 12 months.

    Children’s matters and property settlement can be negotiated at any time.

    Is there a time limit to negotiate a property settlement?

    Married couples have 12 months from the date of divorce to negotiate a property settlement or initiate proceedings.

    De facto couples have two years from the date of separation.

    Once these time limits have lapsed it becomes necessary to seek leave of the Court to proceed.

Still have questions?

    Our firm is well known for its friendly service and competitive fees. We provide comprehensive legal and taxation services. For secure mortgage investments and mortgage loans at competitive rates, see our associated business Clarke & Barwood Lawyers Colac Ltd.

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