Informal and Invalid Wills

When it comes to preparing and executing a valid Will, several factors need to be taken into account to comply with legal requirements.

A Will is a legal document that sets out individual testamentary wishes. This comes into effect once you have passed away. A Will outlines one’s wishes regarding details on your estate, including who you want to inherit your estate assets. (E.g. specific gifts, family heirlooms, share portfolio, company directorships), as well as your preferred Executor(s).

A Will also outlines other personal matters. This can include who will be granted guardianship for your surviving children. (If under the age of 18 years.)

Often, thinking about writing a Will can be a daunting task and something that can often be put on the back burner. It may have even crossed your mind to attempt writing up a testamentary document yourself. But, despite your best efforts to sign and write a document outlining your final wishes, it may be deemed Informal, or Invalid and entirely dismissed by the courts if it doesn’t constitute an official legal document. As a result, this can cause headaches and a great deal of unnecessary stress for all parties involved.

What is an Informal Will?

An Informal Will is a document that is intended to act as a Will but does not comply with the set strict legal requirements. Ultimately, an Informal Will may not be considered valid before the courts when applying for a Grant of Probate. (Known as Letters of Administration with the Will annexed.)

An Informal Will can come in several forms, including:

Electronically typed notes; This could be on a computer, tablet, or phone
A voice recording or video recording
A handwritten note
A text message or email
Instructions to a solicitor with directives to create or update a Will that was not signed or witnessed before the death

What makes a Will invalid?

A Will may be deemed invalid under several circumstances, including but not limited to:

Not complying with the requirements of the Wills Act 1997 (Vic)
The Will is not signed by the Willmaker
The Will is signed without two independent or authorised witnesses present
The signature on the Will does not match legitimate examples or is fraudulent
The Willmaker did not have the necessary testamentary capacity. (I.e. sound mind) to write a Will (e.g. suffering from a mental illness and/or mental impairments, for example, dementia)
The Willmaker is under duress or is influenced by a family member in the writing a new or amending a current Will
Not revoking previous Wills

Can you prove an Informal Will?

Not all Invalid or Informal Wills are automatically dismissed by the court. The court has discretion to decide whether or not an Informal Will can be valid and be admitted to probate. Each situation is dealt with on a case-by-case basis, and the Will in question will be subject to meeting the legislative requirements of the Administration and Probate Act 1958 (Vic). Providing the Will meets all the pre-requisites, a large amount of evidence will be required to be submitted to court, to support the testamentary wishes of the Willmaker.

Inevitably, this leads to a significant increase in legal costs and delay in administrating the deceased estate. Further, it exposes the family assets to claims from extended family members or former spouses. Being granted probate is an extremely complex process and does not always end in the desired outcome. The desired outcome is finalising and distributing the estate to the desired beneficiaries.

Informal or Invalid Wills can cause significant amounts of stress to all involved, so when the time comes for you to consider making a Will, it is worth investing in a professional lawyer to ensure your final Will meets all legal requirements and is valid.

Making a Will Geelong with The Hrkac Group

Firstly, having a valid Will gives you peace of mind that your estate will be distributed to your intended beneficiaries. In addition, providing your loved ones with legal protection to ensure your wishes are complied with.

You want to be sure that your Will cannot be contested and that it will be considered valid in accordance with the relevant laws.

Our team of professionals can assist you with the following:

Drafting & updating Wills (including Wills with trusts)
Appointing a financial attorney under an enduring power of attorney
Appointing a personal attorney under an enduring power of attorney (formerly known as guardianship)
Appointing a medical treatment decision-maker

Learn more about Wills & Powers of Attorney here.

In conclusion, with careful execution of your Will and attention to your requirements, we can help protect your final wishes. The Hrkac Group can help you with making a will Geelong, so if you are ready to take that next step and take control of your future, contact our Geelong-based Legal team at The Hrkac Group today.

Make an appointment today via email or phone our local Geelong offices on (03) 5224 2366.

General Advice Warning

This information has been provided as general advice. We have not considered your financial circumstances, needs, or objectives. You should consider the appropriateness of the advice. You should obtain and consider the relevant Product Disclosure Statement (PDS) and seek the assistance of an authorised financial adviser before making any decision regarding any products or strategies mentioned in this communication. Whilst all care has been taken in the preparation of this material, it is based on our understanding of current regulatory requirements and laws at the publication date. As these laws are subject to change you should talk to an authorised adviser for the most up-to-date information. No warranty is given in respect of the information provided and accordingly, neither nor its related entities, employees, or representatives accepts responsibility for any loss suffered by any person arising from reliance on this information.

Liability limited by a scheme approved under Professional Standards Legislation.

Whether consciously acknowledged or not, trade marks are an integral part of everyone’s daily interactions. The term trade mark essentially means brand. As customers engage with your business, your brand serves as their primary point of contact and their purchasing decisions are influenced by the reputation the brand represents. So, it is essential you protect your brand and the value that lies with it.

Why Bother with a Trade Mark?

A trade mark is a type of intellectual property. It can be a word, a phrase, an image, or even a combination that makes your business unique. Think of them as your brand’s superhero cape, granting you the power to stand out in the competitive marketplace.

Registering a trade mark provides peace of mind for your brand. IP Australia has stated that businesses with registered trade marks are 13% more likely to experience growth. Why? Because trade marks influence how people buy. Your brand isn’t just a logo, it’s a promise of quality, trust, and uniqueness.

Think of Apple – that half-eaten fruit is more than just a logo, it’s a symbol of innovation and style. Trade marks transform your brand into a legend that customers recognize and trust, whether they’re scrolling through Instagram or wandering the aisles of a store.

Legal Reasons to Trade Mark

Exclusive Use
A trade mark legally protects your business’s unique brand, products of services. When you register a trade mark, you secure the exclusive right to use that particular mark for specific goods and services. This means you have the authority to take legal action against any unauthorised use of your trade mark by others and to seek compensation for any damages your business may have incurred due to the misuse of your trade mark.Imagine someone employing your business logo to promote their own inferior products or services. Such actions could potentially mislead your customers into believing they are engaging with your offerings. This has the potential to tarnish your reputation. Opting not to register your trade mark means you have no legal recourse in this instance.
Authorising Use
Another legal benefit derived from registering a trade mark lies in your ability to create licenses for its usage. A trade mark license allows you to charge third parties for utilising your trade mark. This presents a valuable avenue for diversifying your revenue streams while simultaneously expanding the reach of your brand.
Avoid Infringing a Competitors Trade Mark
Engaging in thorough research and pursuing your own trade mark registration is a strategic move to shield your brand and business from inadvertently using another entity’s trade mark. This proactive step is paramount, considering that IP Australia’s findings indicate a staggering 48% of small businesses encounter the need for rebranding due to contested trade mark infringements.Further a survey of global brands found that 75% of trade mark infringements violations lead to complex and expensive legal proceedings that, on average, resulted in costs of $100,000. So, it can be costly mistake to not trade mark your business.

To Trade Mark or Not

Surprisingly, the number of small businesses in Australia with registered trade marks remains below 4%, according to IP Australia. Businesses opting not to register a trade mark may be missing out on numerous benefits not limited to those mentioned here.

An Asset
Trade marks embody a form of property akin to real estate. A trade mark isn’t just a logo, it’s an asset. As your business grows, so does the value of your trade mark. Additionally, as you own it, you can sell it. They are capable of being acquired, sold, licensed, or even employed as collateral to secure loans for business expansion.
Easy to Differentiate
The marketplace landscape is often saturated, making it challenging to set your business apart from competitors. Trade marks and brands function as potent communication tools that capture customer attention and differentiate your business, products, and services.

Upon encountering a trade mark, customers swiftly discern your identity, the reputation associated with your business, and are inclined to explore alternatives less frequently. Your brand could essentially serve as the pivotal factor influencing a customer’s purchasing decision, emphasising the pivotal role trade marks play in shaping consumer choices.

Building a Dream Team
Brands with strong trade marks have the ability of attracting and keeping top-notch talent because employees naturally gravitate towards brands they respect and feel a connection with. Your brand’s trade mark isn’t just a logo, it’s a cheerleader for your team. If it can bring out positive feelings and attachment to the brand, it makes your business a more appealing place to work over competitors.

Research from IP Australia shows that small businesses that register for trade marks are 16% more likely to enjoy strong employment growth. What’s more, small businesses owning trade marks also hire around 3.5 times as many employees as their non-trade mark peers. They also pay a better median wage. Building a strong workforce and growing your business is all in the power of owning your brand’s mark.

Don’t Expire
Lastly, trade marks never expire so long as you continue to pay the renewal fees every 10 years in Australia. So, you have nothing to lose other than protecting your business and brand by registering a trade mark.

Understanding why trade marks are valuable assets and how they contribute to growth is crucial for businesses. Trade mark registration entails more than a superficial logo. It encapsulates a business’s core, its values, and its distinct promise to consumers. Armed with this comprehension, enterprises can unlock the full potential of trade marks, surging ahead in the competitive arena while establishing a recognisable and legally protected niche.

Lawyer Geelong

If you require assistance of have any further questions about registering a trade mark, our experienced lawyers can assist you and answer any questions you may have.

The expertise and experience of our Geelong Lawyer team at The Hrkac Group can help you regarding registering a trade mark for your business. If you need assistance or advice, please get in touch. To make an appointment to meet with one of our friendly Geelong Lawyers, contact us via email, or phone (03) 5224 2366.

Liability limited by a scheme approved under Professional Standards Legislation.

When you buy property in Victoria, under all circumstances, you require the assistance of a property lawyer or a qualified and experienced conveyancer. It basically means that when buying a property, you will need to be advised of exactly what the conveyancing process entails.

Generally, a conveyancing transaction consists of three main stages:

Pre-contract
Pre-completion
Post-completion

Experienced property lawyers have specified and detailed knowledge about property conveyancing and a broad knowledge of property law, such as consumer law provisions, and the various legislation that applies to buying and selling land. Generally, it is advantageous to have a legal firm and solicitor working in your best interests.

**Caveat Emptor – ‘Buyer Beware’**

When buying real estate, the buyer assumes all risk. It is up to the purchaser to make any and all investigations in regard to the contract, the property, and to conduct all due diligence enquiries before they sign the contract. It is solely their responsibility. As signing the contract deems that you have understood the contract and you will be held to its contents.

However, this does not give the seller the right to provide misleading or fraudulent information. A purchaser can rely on Australian Consumer Law provisions to terminate the contract, if the information relied upon to purchase the home, is misleading and/or false.

Things that the buyer should investigate but are not limited to are the following:

Having a lawyer review the contract and vendors statement before signing anything.
Check the person selling the property is the person who owns it.
Making enquiries with local Council on planning or building applications nearby.
Checking for encumbrances e.g. caveats, planning restrictions and overlays, or easements
Checking if you can do what you want with the property such as extensions, subdividing, and development.
Details of building permits over the last 7 years and check to see if any building works performed without a permit by the current owner could be raised as a issue by Council in the future.
If there is a pool, spa, or pond, is it properly fenced, registered and up to current compliance codes.

Our top 5 tips when purchasing property to protect yourself

1. Make your own enquiries

Remember the real estate agent has been hired by the vendor and they do not act for you. They are required to disclose certain information to you by law, but they may miss providing important details that could affect you after settlement. Don’t solely rely on what the agent or seller tells you. You need to understand the price you should be paying for the property given the area, council rates, stamp duty, transfer fee, government fees, and other fees that may be involved if you purchase the property. Whether the bank will lend you enough money, do you have pre-approval and what are the estimated repayments for the loan. You need to be well-versed in all areas of the process to make sure you fully understand what you’re entering into, not just what you’ve been told by someone not invested in the future ownership.

2. Arrange for a building and pest inspection

These are essential and can be added to the contract as a special condition or arranged for in the Cooling Off period (usually 3 days after contract signing). These inspections will come at a cost but will be well worth it for your peace of mind. They will reveal if the property has any defects or requires any type of work. The inspection reports should also be able to provide an indication of what it would cost to fix the issues. If there are defects found, this can provide you with the opportunity to cancel the contract if a major structural defect or a major pest infestation is found, you could also negotiate and check to see if the vendor will complete the repair works prior to settlement or give you the opportunity to renegotiate the contract price if you want to do the works yourself.

3. Employ a property

There is no substitute for using an experienced conveyancer or a property lawyer to act on your behalf. Given your primary goal when buying property is to increase your wealth, it makes sense to pay for professional advice to protect yourself and your investment from any mistakes or things that you didn’t consider or turn your mind to being a key aspect of your purchase (for example, rental possibilities or surrounding developments). Your conveyancer will be able to do all the necessary statutory searches and then be able to go through these documents with you, as they understand it all, and see if there are any issues or things to note. It’s during this process that you may discover that the Council has the right to widen the road or take part of your land or that the sewer is on your property, and they will be digging up your entire front yard.. There’s a lot involved in reviewing a contract and conducting due diligence investigations. Making enquiries and engaging a lawyer upfront is going to be well worth your money down the track and it could end up saving you hundreds of thousands of dollars from a simple oversight.

4. Title insurance

Another way you can protect yourself is to take out title insurance. This form of insurance is the most comprehensive protection against risks that may affect the legal ownership of your property and your right to occupy and use the land, and it’s good for the entire period of your home ownership. It protects you from future events like finding out that your boundaries are in the incorrect place, and the previous owners built on a part of your neighbour’s property. It also protects you in instances like if the Council sends a notice saying you have a structure on your property that did not get approved with permits and must be pulled down. Your conveyancer will be able to give you more advice about the merits of this type of insurance.

5. Ask questions

Lastly and importantly make sure you ask every question you can think of. Your conveyancer never actually goes to see your property. So, it is up to you as the purchaser, the one signing the contract and being held to the agreement, to ask all the questions. Ask the agent, ask the Council, ask your conveyancer. It’s best to have asked the question than to think it doesn’t matter and later have it be an issue and cost you lots of money, it could be a very expensive lesson to learn! There are so many things to understand, and you should utilise all the resources you have to make sure you understand everything before your sign on the dotted line.

Bellarine and Surf Coast Conveyancing

If you’re interested in knowing more about what is required when buying real estate, speak to our expert property lawyer at The Hrkac Group.

A smooth property settlement depends on all legal and financial obligations being met, and that can require liaison between a number of different parties including solicitors, lenders, and real estate agents – even representatives of local councils.

Our lawyers and conveyancers’ expertise and experience in facilitating a stress-free settlement can help ensure a positive outcome for you. So, whether it’s a change of name or transfer of title, an application for subdivision, or any matter regarding commercial or residential conveyancing, you can rest easy knowing it can be handled under one roof at the Hrkac Group. If you’re looking for conveyancing/property law services, look no further. To make an appointment to meet one of our friendly team at HG Legal Services today, feel free to contact us via email at legal@hrkacgroup.com.au or phone (03) 5224 2366.

Deceased Estates encompass all of the property and belongings that hold monetary value, owned in the sole name of a person who has died. Most people are familiar with the concept of deceased estates as containing valuable items to be distributed to beneficiaries. It is perhaps less well understood that when someone dies, the debts and liabilities that they held during life often continue and must be discharged out of the estate. In this post, we will outline the general rules of deceased estates and what is and is not included.

When a person dies, everything they solely own forms their estate. This may include:

Real estate
Vehicles
Money in the bank
Investments
Insurance policies
Stocks and shares
Household items
Jewellery
Domestic pets, which are treated as property for the purposes of distribution of the estate.
Any other possessions.

Some types of income can also form part of the deceased estate. However, some assets will not be included because the deceased may have made other arrangements to distribute them. For example, assets that are jointly owned are not part of the estate and will pass to the surviving owner.

Who Is Responsible For Administering Deceased Estates?

Deceased estates hold the assets of the deceased in trust, from the time of the death of the person concerned, until the transfer of the property and/or assets to their beneficiaries as nominated in their Will.

It is administered by either:

An executor appointed in the person’s will, or
An administrator appointed by the Supreme Court.

If there is a valid Will, the person named as Executor in the Will is responsible for the distribution of the deceased estate according to the testamentary wishes as expressed in the Will.

A Grant of Probate is required before an Executor can administer a person’s estate and distribute the assets to the beneficiaries. This means the Supreme Court of Victoria issues/grants a document confirming that the will is valid. It also confirms the appointment of the executor. It’s officially called a grant of representation. There are two types of these grants:

Probate – where there is a will
Letters of administration – where there is an informal Will (not properly executed or drafted)
Intestacy – where there is no Will.

A grant of representation gives a person the legal right to administer the estate of the deceased. Some small estates (valued at less than $50,000.00 gross value) may not need a grant of representation.

After probate the executor collects all of the deceased’s probate assets, settles their debts, and ensures that the remaining assets are distributed to the nominated beneficiaries.

If someone dies without a valid will, they are said to die intestate, and the result is a more complicated process of having the estate distributed according to the law in accordance with the Administration and Probate Act 1958. Without a nominated executor in a will, the deceased is not able to decide who will take responsibility for administering their deceased estate, it is usually the next-of-kind who will need to apply for a grant of representation, or if no next-of-kin, the person who is next entitled to benefit from the estate in accordance with the legislation.

Responsibilities of an Executor

Administering an estate involves finalising everything relating to the assets of the deceased person’s estate.

This includes managing all the financial and legal issues, closing bank accounts, selling/transferring shares, dealing with the Superannuation benefits, and making sure all debts are paid and assets accounted for. It also means being responsible for making sure the beneficiaries named in the Will receive their inheritance. The Executor or Administrator (this information applies equally to both) is responsible for administering the deceased estate in the best interest of the beneficiaries nominated in the Will (or if no will exists, the deceased person’s next of kin or another person according to a state or territory law).

Tasks usually performed by an executor may include:

Locating the original or a copy of the Will
Arranging the funeral
Obtaining a death certificate
Applying for Probate
informing investment bodies of the death – these might include banks, building societies, and share registries and furnishing them with a certified copy of the Death Certificate
informing Centrelink and other government bodies, such as the Tax Office
locating assets and having their market value assessed by either a Real Estate Agent (x3) or a private valuer;
paying debts, income tax, and funeral expenses
transferring assets and paying stamp duty (if applicable)
distributing the surplus to beneficiaries.

Tax responsibilities

If you have been appointed as an Executor or Administrator of the deceased estate, you will also be responsible for managing the deceased estate’s tax affairs. This includes:

lodging a final return, and any outstanding prior-year returns, for the deceased person
lodging any trust tax returns for the deceased estate
providing beneficiaries with the information they need to include distributions in their own returns and, in certain cases, paying tax on their behalf.

There are generally no death duties in Australia. However, tax may be payable on certain income or capital transactions that arise as a consequence of a person’s death.

Any tax liability that may be generated from your role as Executor is separate from your own personal tax liability. Therefore don’t include any of the income of the deceased person or deceased estate in your own personal tax return (except for any trust income you may receive as a beneficiary).

Another item that may potentially have to be declared is any fee charged to the estate for executor services performed.

Capital gains tax implications

When the assets of a deceased estate are distributed, a special rule applies that allows any capital gain or loss made on a CGT asset to be disregarded if the asset passes:

to the executor
to a beneficiary, or
from the executor to a beneficiary.

However, if an Executor sells an asset of the deceased estate after two years after the date of death and then distributes the proceeds to the beneficiaries, the sale is subject to CGT applies and only a partial exemption to CGT may apply.

In most cases, the transfer of CGT assets into a deceased estate and then out to their beneficiaries will not incur an income tax liability.

Superannuation death benefits

In most cases, when a person dies, their superannuation fund will pay their remaining super to their nominated beneficiary, which is called a Superannuation Death Benefit.

If there are no binding death nominations, then the Trustee of the super fund will decide how the benefit will be paid. Depending upon the trust deed of the superannuation fund, and rules and regulations operating for superannuation, the trustee may pay it to the deceased estate, and it will be distributed in accordance with the terms of the Will.

If you are a dependant of the deceased, you do not need to pay tax on any component of a superannuation death benefit if you receive it as a lump sum (if you receive it as an income stream you may need to pay tax on it). Also do not include it on your tax return as income.

If you are not a dependant and you receive a death benefit it must be as a lump sum. The item is generally taxable as follows:

Taxed element of the benefit: 15% plus Medicare levy
Untaxed element of the benefit: 30% plus Medicare levy

Which debts are paid from a Deceased Estate?

A Will should also make provision for the executors to pay for expenses such as the funeral, and to discharge any debts out of the deceased estate. An Executor will also ensure that any applicable income tax is paid from the deceased estate. The estate must pay any other tax that falls due as a result of the liquidation of assets, such as superannuation payouts and capital gains on the sale of investments such as shares or property.

Generally, an Executor will pay the debts of the deceased before any assets are distributed to beneficiaries. The only exception is that the superannuation death benefits and life insurance of the deceased cannot be used to repay the debts of the deceased estate. All other assets of the deceased estate are available to the Executor for the purpose of discharging debts, regardless of the instructions of the will as to the distribution of assets. Therefore an executor is unable to, for example, distribute a mortgage-free property to a beneficiary if there are other debts in the estate that cannot be discharged without the sale of the property.

What happens if any debts cannot be settled?

If the estate does not contain enough assets to cover the debts at the time of death, the Executor will pay the debts according to either bankruptcy provisions or the insolvent estate provisions. An Executor is not required to repay the debts out of their own pocket unless they have some direct involvement with that debt (i.e. the debt is secured against a property that they own or, they have personally guaranteed the debt).

Bankruptcy and insolvency estate provisions ensure that the first priority is the funeral, testamentary, and administration expenses. The Executor will then discharge current and past tax debts, regardless of any instructions that the deceased has left in the Will, followed by the repayment of secured debts such as home or car loans. The deceased estate will also prioritise the payment of any delinquent child support and make provision for the ongoing payment of child support for a dependent child (if applicable). If there is a HECS-HELP education debt outstanding at the time of death, the balance of the debt will be extinguished.

The final debts to be paid out of a deceased estate are unsecured debts, and it is this class of debts that are most likely to remain unpaid if the estate is insolvent. This means that even if a Will makes a provision, for example, that an unsecured debt to a family member is to be repaid, this debt will be paid only after all secured debts are discharged. This can be an issue where family members have provided substantial unsecured loans towards the purchase of a home or investment in a business. This is one of many reasons that family loans should always be formalised and documented.

If you’re interested in knowing more about Deceased Estates, speak to the expert Geelong lawyers at The Hrkac Group. Making sure that everything runs as smoothly as possible depends on all legal and financial obligations being met, and that can require liaison between a number of different parties.

Our Geelong Lawyers’ expertise and experience in facilitating Deceased Estates can help ensure a positive experience for you. To make an appointment to meet one of our friendly Geelong Lawyers today, feel free to contact us via email or phone (03) 5224 2366.

If you’re buying or selling a property in Geelong, you may have heard a lot of different terms being thrown around. But don’t be overwhelmed if you haven’t heard the majority of these before. With the help of experienced Geelong conveyancers, you are still more than capable of completing the purchase or sale of a home.

Our friendly Geelong conveyancers at the Hrkac Group have compiled an easy reference guide of some of the most common conveyancing terms to help you through the process. Refer to this glossary of conveyancing definitions as you come across them on your property selling or purchasing journey.

Agent
The real estate agent who the seller, or vendor, has engaged to manage the sale of the property.

Auction
When the sale of a property is conducted in public and is sold to the highest bidder.

Caveat
A caveat is a legal claim lodged against a property by a person with an interest in the property. A caveat will prevent a property from being sold or transferred unless it is removed.

Common property
Areas of a property used by and belonging jointly to all owners of a property. This applies to such properties as apartment blocks or multi-dwelling complexes.

Contract of Sale
A written agreement between the buyer and seller of a property that outlines the terms and conditions of the sale, inclusions, price, descriptions of the property, and completion date.

Cooling off period
A period of three business days which commences from the date when an exchange of contracts has taken place between the purchaser and the buyer of the property. During this time, the purchaser can choose to walk away from the contract, though may be required to forfeit 0.2% of the purchase price. There are some circumstances in which a purchaser can’t cool off, such as buying at an auction.

Covenant
An agreement creating an obligation on the titleholder of a property to do or refrain from doing something. For example, a restrictive covenant could state that no more than one dwelling may be built on the land.

Deposit
A percentage of the purchase price for the property being sold. This amount of money is paid by the purchaser as an assurance that they are going ahead with the purchase of the property in question. This amount is usually held by the estate agent until all paperwork for the purchase of the property has been signed.

Easement
A right to use and access part of the land on the property. This right can belong to someone who is not the landowner. An easement is typically used when access is required for wires and pipes for maintenance of sewage, drainage, and electricity. An easement can also refer to shared driveways and paths on a property.

Encumbrance
Refers to the fact that there’s a mortgage or caveat registered for the property title.

Equity
Having ‘equity in your own house’ refers to the difference between the market value of a property and what is still owing on a mortgage. This will increase as the loan is repaid or as the property’s market value increases.

Finance
Pre-approval is the stage where your bank/lender has confirmed an amount you are able to borrow, based upon your financial position. Finance is not guaranteed at this point and is conditional.

Unconditional Approval is the stage where your bank has carried out all the necessary enquiries, including a valuation on the property it is taking as security and has agreed to formally lend you the funds required for your purchase. This stage is “unconditional” because it doesn’t have any further conditions attached to it, except for the execution of documentation.

Fixtures
Items that are attached to the property and which ownership moves from the seller to the buyer with the property.

Joint ownership
Title to property is held in one of two ways. Joint tenants means that each person owns the property jointly and equally. In the event of one joint tenant surviving the other, the property automatically passes to the remaining joint tenant or tenants. Tenants in common means that each person owns a share (can be 50/50, 70/30, 99/1 or any share you wish) in the property. On the death of one party that share passes to whoever inherits their estate, so having a current Will is essential.

Mortgage
An amount of money loaned to a person or entity that is used to define the purchase of a property. This will be registered on the title to the property and can be used to claim a legal interest in the property purchased.

Mortgagor
The person or entity who receives the mortgage.

Mortgagee
The person or entity who provides the mortgage.

Mortgage guarantee insurance
Paid by the borrower to protect the lender against failure by the borrower to keep up mortgage repayments or to pay back the loan in full when it is due. Such insurance normally applies where the borrower’s loan exceeds 80% of the value of the property. This type of insurance is taken out by the lender, with the cost passed on to the borrower. The borrower remains liable for any shortfall; for example, if the property is sold and the proceeds do not cover what is owed to the lender.

Off the Plan
An ‘Off the Plan’ property is a unit or house that has not yet been built, and you have agreed to buy based on the Developers’ plans.

Owners corporation
Formerly known as a body corporate. An owners corporation has the collective ownership of the common area in a subdivision of land or buildings. It is responsible for the administration, upkeep, and insurance of the common area shared by all the owners (the common property).

Section 32/S32
Information that the seller must provide to the buyer advising of restrictions such as covenants and easements, outgoings such as rates, and any other notices such as compulsory acquisition. Also known as a vendor’s statement.

Settlement
When ownership of a property passes from the seller to the buyer and the balance of the sale price is paid to the seller.

Stamp duty
A state government tax, based on the sale price of a property, paid by the buyer when property ownership is transferred. Also known as duty.

Statement of adjustments
A document that includes all the adjustments of certain costs such as taxes, rates, water, rent, and how they are divided up between the purchaser and the vendor. Until settlement, the vendor must pay all expenses pertaining to the property. These expenses transfer over to the new owner of the property upon completion of the settlement.

Subdivision
The process of dividing one piece of land into different lots. This is a common practice among buyers who wish to buy land with the intention of building multiple houses or units on it.

Subject to finance
A contract clause that states the purchaser of the property in question has to obtain finance for a set amount by a certain date. Failure to do so releases them from the buyer’s contract without a financial penalty.

Title
A legal document identifying who has a right to the ownership of a property.

Transfer of Land
A document recording the change of ownership of a property from the seller to the buyer.

Vendor/Seller
An individual or entity selling land.

Zoning
The permissible uses of an area of land as stipulated by the council.

Geelong Conveyancing

If you’re interested in knowing more about what is required when buying or selling a home, speak to the expert Geelong conveyancers at The Hrkac Group. A smooth property settlement depends on all legal and financial obligations being met, and that can require liaison between a number of different parties including solicitors, lenders, and real estate agents – even representatives of local councils.

Our Geelong conveyancers’ expertise and experience in facilitating a stress-free settlement can help ensure a positive outcome for you. So, whether it’s a change of name or transfer of title, an application for subdivision, or any matter regarding commercial or residential conveyancing, you can rest easy knowing it can be handled under one roof at the Hrkac Group. If you’re looking for Geelong conveyancing, look no further. To make an appointment to meet one of our friendly Geelong Conveyancers today, feel free to contact us via email or phone (03) 5224 2366.

Business is running smoothly, and you and your business partner have an amazing working relationship. You’re dealing with day-to-day tasks, forecasting results, and anticipating challenges to your business. It is probably the last thing on your mind to plan for what you would do if something were to suddenly happen to your business partner.

If you don’t have legal documentation in place to determine what would happen in the tragic event that your business partner was to die or become permanently incapacitated, there could be significant negative impacts to your business and to your personal relationship with your business partner and/or their family.

With enough foresight and the necessary legal agreements in place, some anguish and disruptions to your business can be circumvented.

What are the possible damaging outcomes for my business?

Unfortunately, without legally documented agreements in place, the death or incapacitation of a business partner can have disastrous consequences for your business.

You may not have insurance in place and be unable to pay their share of the business to their estate.
You may be unable to find a replacement for their role and responsibilities, resulting in the closure of your business.
Insurance may not be adequate to cover your partner’s share of the value of the business, their share of any debt that the business is carrying, capital gains tax, GST as well as many other unforeseen costs.
Life insurance that you intended to use to pay for their share of the business, may instead be paid to other beneficiaries.
Their family members may have different expectations to you about their ongoing role in the business.

How can I protect my business and all parties involved?

In the unimaginable circumstance that your business partner dies or is permanently incapacitated, best practice is to have in place legal partnership agreements and formal succession planning drawn up by a legal professional.

You should address the following throughout the process:

Have a legal partnership agreement drawn up which formalises the rights and obligations of two or more people who are going into business together as partners.
Methodical succession planning and clear processes to follow are well-documented and drawn up by a legal professional.
All parties involved will require an up-to-date Will and estate plan that outlines plans for their business interests.
Ensure sufficient insurance is taken out and legal documentation is drawn up outlining how that insurance is to be managed.
Arrangements are made to pay out an estate or family members expediently.
The process for valuing the business is clearly outlined and documented.
Taxation, such as capital gains tax & GST is taken into consideration.

How we can help.

It is important to have a legal professional draw up these items for you:

A legal business partnership agreement
A formal succession plan for your business
A legal Will or estate plan

Our legal professionals can help you draw up a business partnership agreement to ensure that each partner knows their rights and responsibilities. It will also define policies for what should happen in this worst-case scenario.

Our succession planning experts can help you ensure that you retain financial security and minimise tax liabilities during the transfer of ownership or management.

We can guide you through the Will & estate planning process, answering any questions you may have along the way, giving you the confidence that you will be leaving your business and family secure.

We have vast experience in business valuations that take into consideration all aspects of your operations.

If something has already happened to your business partner without legal agreements in place, we can also offer legal advice.

With some forward planning and formal legal agreements in place, some distress and interruptions to your business can be avoided in the heart-breaking event that something were to happen to your business partner.

Take control of your future today by meeting with the Geelong-based Legal team at The Hrkac Group. Call us today on 03 5224 2366.

In today’s world, planning for an unknown future is something of increasing importance. The reality of your future may involve an accident or illness that takes away your capacity to make your own financial, medical, and residential decisions. To help safeguard your future, appointing a trusted person to help you make those decisions, as you would have, will give you the confidence to continue living life to the fullest.

What is a Power of Attorney?

When you are unable to make important decisions for yourself, and you have appointed a trusted friend or relative as your Attorney, they are legally allowed to make those decisions for you. They are required to sign a legal document that gives them certain decisional powers over your financial, personal, and medical affairs so that your money, property, and well-being are cared for in a way you approve of.

There are different types of power of attorney for different decisions.

Enduring Power of Attorney: At a time of your choosing or at the point where you no longer have the capacity to make decisions about your finances, your property, or paying your bills, an attorney appointed by you as an Enduring Power of Attorney will have the legal authority to act on your behalf to ensure your best interests are taken care of.
Enduring Power of Attorney (Medical): Wherever possible, your Attorney appointed as Medical Power of Attorney will be able to accept or refuse medical treatments, surgeries, and medication on your behalf. There are restrictions to their range of power.
General non-enduring power of attorney: appointed to make financial decisions for a specific purpose or set period of time (generally used in companies and not initiated by illness).

Who can be an Attorney?

You are free to make the decision of who your Attorney(s) are, you are even allowed to appoint multiple attorneys with different designations on how decisions are made.

Generally, a spouse, partner, relative, or close friend is chosen as someone’s Attorney, however, it’s important to consider that this person must: act in your best interest, make the same decisions you would, keep accurate records of their decisions on your behalf, avoid conflicts of interest and keep your finances and property separate to their own.

You can limit their range of power by choosing the tasks they are responsible for and which they aren’t; you can also appoint more than one so that they must make joint decisions or majority decisions. It’s also possible to appoint a backup in case your primary appointed Attorney is unavailable.

What can they do?

An Attorney’s duties begin when they are designated to. You can have them commence immediately

after the Power of Attorney document is signed, at a certain time or on the occurrence of a certain event.

If you choose for the Attorney’s powers to start on a specific date, or event, they cannot make decisions before that occurs.

An Attorney may also be required to provide evidence that you are no longer able to make decisions on your own behalf – this can be in the form of a medical certificate or letter from a medical professional.

An Attorney appointed as Enduring Power of Attorney can:

Make financial or legal decisions on your behalf
Manage your banking
Maintain your property
Pay your bills
Choose where you live
Decide how your healthcare is maintained

They can’t:

View or edit your will
Make medical decisions
Exercise personal powers, such as vote on your behalf

An Attorney appointed as Medical Power of Attorney can:

Agree or refuse medication or surgery
Agree or refuse your involvement in medical research
Refuse treatment if it will cause you distress or if you would warrant it unnecessary
Take precedence over an attorney with healthcare powers

They can’t:

Agree to treatment that will compromise your fertility
Terminate your pregnancy
Agree to the removal of tissue for a transplant
Refuse treatment to alleviate pain and suffering in palliative care

How to choose/appoint an Attorney?

Appointing an Attorney can be completed in four steps:

Choose your Attorney or Attorneys.
Advise them about your decision, and confirm they are happy to act as your Attorney.
Instruct HG Legal to draft all required Powers of Attorney documents.
Execute the Powers of Attorney in front of a fully qualified witness.

When does an Attorney’s authority end?

There are a few reasons why an Attorney is no longer required to make decisions on your behalf:

You recover or return to decision-making capacity.
You revoke their rights as your Attorney. You can do this by either filing a revocation or by appointing a new Attorney, which will overwrite the previous.
They can resign as your Attorney.
If you pass away, your Attorney is no longer able to make decisions on your behalf.

If you need assistance appointing an Attorney or have any questions on how to go about appointing one, Stuart and our Legal team are here to help you at any stage. Take control of your future and live life to the fullest. Contact us on 03 5224 2245 or legal@hrkacgroup.com.au.

What is a Will?

A Will is a legal document that says how your estate will be distributed after you die. The property that you leave when you die is known as your estate. Your Will can also include your wishes about things such as who you want to care for your children after you die and your burial wishes.

Why make a Will?

Everyone should have a Will. A Will is a legal document where you say what you want to happen to your estate when you die. If you don’t have a Will, your estate may not go to the people you want it to.

What if I die without a current Will?

If you die without a current Will the law will decide what happens to your estate. This may mean that your estate is not distributed in the way that you wish. Your estate may be distributed in accordance with an old Will. Otherwise, the court will appoint an administrator to distribute your estate following legal rules known as the rules of intestacy.

That means, your assets may go to:

• your spouse or domestic partner, children or parents, or more distant relatives, or

• if you have no relatives at all, your property will go to the State.

Choosing an executor

An executor is a person or trustee company that will manage your estate after you die. Your Will names the executor and gives them the power to deal with your estate in accordance with the terms of your Will. Your executor must follow the directions in your Will. They can’t make guesses and change your directions even if they think you might have changed your mind. If they fail to act on the Will, the court or Registrar of Probates can ask them to explain. The court or Registrar of Probates can take this action themselves or when someone complains.

Who should I choose as my executor?

Your executor could be a family member, friend, lawyer or other professional, such as an accountant or trustee company. When choosing an executor, you should consider their circumstances and skill set to decide if they are suitable.

What should I consider when choosing an executor?

• You need to make sure the person you choose to be your executor has the skills and time to do it. You should ask them if they are happy to take on the responsibility.

• Your executor needs to be someone you can trust to carry out your wishes. It is their job to take control of your estate and make sure the right people get what they should.

• The executor also needs to be able to understand basic accounting and deal comfortably with a range of people, including banks and lawyers, and your family. Sometimes they may need to deal with disputes between beneficiaries or claims being made against your estate.

• Your executor needs to carry out their responsibilities after you die, so an executor who is much older than you, is unwell, or likely to move overseas is not a good choice, especially if you have children who may not benefit for some years.

• If you appoint a professional as executor, they will need to be paid from your estate. You should refer to payment for their services in your Will.

• Sometimes an executor might need professional assistance to undertake their role. Any costs associated with such professional help will be paid out of the estate before the assets are distributed.

Why it’s a good idea to appoint more than one executor

Even though you trust your executor, it can be good to have two people who can keep track of what is going on and make sure the right thing is done. You are allowed up to four executors, but this is not usually recommended.

If you choose to appoint more than one executor, make sure they can work together. If you appoint one executor, it is a good idea to appoint an alternate person in case your first person can’t (or won’t) take on the role after you die.

Your beneficiaries

Who is legally entitled to benefit from my estate?

You are expected to look after your dependents in your Will if they need your help and you have the resources. Dependants could include people like your partner or children, even if they are adults. If you don’t include these people, they may be able to challenge or contest your Will. If their claim on your estate succeeds, the court will make an order to give some of your estate to that person. It doesn’t matter what wording you use in your Will, you can’t get around this if the court decides it is appropriate. Some of the costs of such claims may be paid out of your estate.

Making a Will in Geelong

Stuart and the expert Legal team at The Hrkac Group can help you through the Will making process, assisting you with any questions you may have along the way and give you peace of mind that your wishes will be complied with.

Want help with making a will in Geelong. Make an appointment today via e mail or phone 03 5224 2366.