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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

An important step in building your home is selecting the builder. Once this decision is made, it is critical that you review and understand the building contract. Property Lawyer Crystal Roman explains.

Introduction

Building your own property is an exciting time for most owners. However, there can be a lot uncertainty and confusion when looking over a Building Contract and understanding its terms and conditions.

Whilst all Building Contracts are different and vary from project to project, we recommend that you carefully consider these particular items when considering to enter into a Building Contract

1. Special Conditions & Schedules

Unlike the general conditions which are standard across all Major Domestic Building Contracts, your builder will have a particular set of special conditions and schedules unique to your project which generally will favour the Builder. These special conditions and schedules can override the general conditions and impose further restrictions on you as the owner, which is why it’s extremely important to carefully review each clause. Some examples of clauses that require particular attention include:

  • Defects liability period – the standard defects liability period under the general conditions is three (3) months. Does the defects liability period inthe special conditions change this the standard period?
  • Penalty Interest ­– make sure the penalty interest level is not exorbitant and in line with the current standard interest rates.
  • Completion date – if you have certain expectations about the completion date, ensure that the timelines you have been advised of and agreed to are incorporated into the Contract.
  • Exclusions listed – note if there are any exclusions in the Contract relating to work that the builder will not do and therefore you are expected to do yourself. These may be things such as fencing, demolition, window coverings, and any bonds or fees for the Council or Water Authority.
  • Price escalation rights – there are usual price escalation rights incorporated into a Contract which allow the builder to increase their costs where their supplies, materials or other expenses have increased in price.

2. Has the builder included all fixtures and fittings?

If the builder has promised you that they will include all of the fixtures, fittings and specifications you have requested, make sure that these are included into your Contract to your satisfaction.

Verbal representations and/or emails made by the builder are not legally binding and you will not be entitled to make a claim against the builder in relation to the absence of this once the works are complete. Additionally, if your fixtures, fittings and specifications aren’t recorded in the Contract, you will have to request a variation, which the builder is not obligated to perform, but may agree to do so at their discretion and at your own extra cost. Therefore, it is important that you are satisfied and sure of the fixtures and fittings recorded in the Contract before signing.

3. Cooling-off period

All Major Domestic Building Contracts in Victoria provide for a five-day cooling off period in the event that you change your mind. This cooling off period starts from the day you receive a fully signed contract from the builder.

Before signing the Contract, make sure that a cooling-off notice is attached to it, in the event that you change your mind. If you decide to end the Contract during the cooling-off period, make sure you complete the notice to withdraw correctly.

Where you end the Contract during the cooling-off period, you are entitled to your deposit, less $100.00 and any out-of-pocket expenses and pre cooling-off costs incurred, such as any building work done or any materials supplied.

It is important to note that you cannot withdraw from the Contract under the cooling-off period if you have previously entered into a Major Domestic Building Contract under similar or same terms for works related to the same home or land, or if you received legal advice from a solicitor before entering into the Contract.

Entering into a Building Contract is big decision, so we recommend that all owners seek proper and thorough legal advice before signing the contract to ensure satisfaction and certainty about the terms you agree to.

How Sharrock Pitman Legal can help?

As Accredited Specialists in Property Law, our lawyers can provide advice on what to look out for in your Building Contract, what clauses should be included, your obligations and what provisions could be disadvantageous to you in the event that the project runs into trouble.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

,

.

Crystal Roman

For further information contact

Crystal Roman

Crystal Roman is lawyer in our Property Law team. Crystal can be contacted on (03) 8561 3328 or by email crystal@sharrockpitman.com.au.

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An important step in building your home is selecting the builder. Once this decision is made, it is critical that you review and understand the building contract. Property Lawyer Crystal Roman explains.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.