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Do you 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:


CALL: (03) 8561 3318

Engaging a builder to construct that long awaited extension, renovation or brand new home can be risky, as well as financially onerous and stressful.

Building Disputes

Building disputes often arise where consumers are not aware of their rights and obligations, or do not hold builders properly to account for delays, cost blowouts and other issues. Fortunately, there are many steps that you can take to limit the risk of a dispute arising with your builder, whether construction is yet to commence, is underway, or has been completed.

Domestic Building Regulation

Domestic Building Works performed in Victoria must comply with the relevant laws. This includes, but is not limited to:

  • Australian Consumer Law and Fair Trading Act 2012 (Vic)
  • Building Legislation Amendment (Consumer Protection) Act2016 (Vic)
  • Building Act 1993 (Vic);
  • Building Regulations 2018 (Vic);
  • Domestic Building Contracts Act 1995 (Vic);
  • Domestic Building Contracts Regulations 2017 (Vic);
  • Local council laws; and
  • Relevant case law.

Before Work Commences

  • A domestic building contract is usually comprised of three separate documents: a building contract, specifications and plans. Make sure you seek independent advice on each of the documents. Do not sign any other document that falls outside this list. Click here for more information on building contracts from Consumer Affairs Victoria
  • Beware of unregistered builders. There is usually a good reason why a builder is not registered! Click here to check the registration status of your builder
  • Ensure that every item of work and associated materials are properly priced and that the price, where possible, is fixed in the contract.
  • Ensure you are satisfied with the start date. If the start date is not known, request the builder to do everything reasonably possible to commence work as soon as possible.
  • Ensure you are satisfied with the date the work will be finished, noting standard building contracts allow builders to claim extensions for delays outside their control, such as any variation to the works.
  • Remember, you can withdraw from the contract within five (5) clear business days after you receive a signed copy (the cooling off period). However, you cannot "cool off" if you have received independent legal advice or have previously entered into a similar contract for the same work.
  • Avoid large upfront payments. Such payments attract a high degree of risk, especially where the builder encounters financial difficulty during construction.
  • Ensure the builder has valid home warranty insurance for the project. See here for more information

During construction

  • Always ask your builder for copies of invoices, receipts or other documents that show the cost to the builder of any item or service.
  • In the event the builder requests a variation to the contract price, plans or specifications, ensure any such request is made in writing. Remember, the builder is legally obliged to state why the variation is required and the length of time necessary to complete. Confirmation of the cost of variation and the overall impact on the contract price must also be explained by the builder. Builders cannot recover the cost of variations that were not necessary and were foreseeable at the time of entering into the contract.
  • Lazy or disorganised builders often fall behind schedule toward the end of construction. Ensure you carefully scrutinise a builder's request for an extension to check that it is permitted by the contract.
  • Ensure you have sufficient cash flow to maintain the progress payment schedule. Failure to make a payment in accordance with the contract may expose you to penalty interest or even suspension of works and liquidated damages.

After construction

  • If you notice any defects with the building once construction is complete, make sure you notify your builder in writing during the "defects liability period." Claims for defective building work, however, can be made for a period of up to 10 years after the defect arose.
  • Remember, compulsory home warranty insurance is there to protect you in the event that building works are defective. Such insurance will cover structural defects for up to six years, while non-structural defects are covered for only two years. Incomplete items are also covered but only for up to 20% of the contract sum including agreed variations.  For policies issued before 1 July 2014, the cap on such claims is $200,000.00 while for policies issued from 1 July 2014, the cap is $300,000.00. To check if a policy has been issued in relation to your property, go to https://www.dbi.vmia.vic.gov.au/
  • Importantly, where the home warranty insurance policy was issued prior to 1 July 2015, cover will only be available in the event the builder is dead, has disappeared or has been made bankrupt.
  • For policies issued from 1 July 2015, you can make a claim if any of the above occur or if a final order has been made against the builder by the Victorian Civil and Administrative Tribunal ("VCAT") (and the appeal period has expired).

Building Disputes: How can Sharrock Pitman Legal help?

If you find yourself in a building dispute, our Litigation team can assist you. For more information refer to our article on resolving building disputes effectively. Call Sharrock Pitman Legal today on 1300 205 506 or complete the form below.

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

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For further information contact

Yevashrin Naidoo

Yevashrin (Vash) Naidoo is a Litigation Lawyer at Sharrock Pitman Legal. For further information, contact Vash on his direct line (03) 8561 3330 or email vash@sharrockpitman.com.au.

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Engaging a builder to construct that long awaited extension, renovation or brand new home can be risky, as well as financially onerous and stressful.

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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About Sharrock Pitman Legal

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.