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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

A new Franchising Code of Conduct, introduced on 1 January 2015, will apply to all franchises across Australia.

What's happening?

We previously shared the results of the Federal Government's enquiry into the Franchising Code of Conduct ("the Code"). The Code is a mandatory industry code that all Australian franchisors and franchisees must comply with. The Government has now legislated the new Code and we can now see what changes have been implemented.

What are the changes?

As expected, the new Code is completely re-formatted and contains a number of key changes designed to make it quicker and easier for franchisors to comply with their obligations. The changes are numerous, but some of the key items include:

1. Franchisors and Franchisees will be required to follow a duty of 'good faith' towards each other. Previously, this has not been a legal requirement. The duty to act in good faith applies to all ongoing dealings between the Franchisor and the Franchisee, not just their initial negotiations of the Franchise Agreement. However, uncertainty remains about what is meant by 'good faith'. We expect that court judgements will soon start to shed light on what level of 'good faith' is expected by the Courts.

2. Franchisees may be required to provide certain information to their Franchisor when seeking their agreement to transfer the franchise to another party (e.g. if the business is sold).

3. Franchisors will need to provide an information sheet about the risks of franchising.

4. The mandatory Disclosure Document that Franchisors must provide to Franchisees will now contain additional information, including details of any litigation involving the directors of associates of the Franchisor, details of the Franchisee's rights to online sales, and details of the Franchisee's rights when the Franchise term ends.

5. Franchisors will need to provide greater transparency about the ways in which marketing funds are used; and

6. Franchisors may not require their Franchisees to incur significant capital expenditure unless that expenditure is disclosed in the Franchise Agreement, the majority of Franchisees agree, the expenditure is required to comply with legal requirements, or the Franchisor complies with certain obligations to justify the expenditure to affected Franchisees.

New penalties apply!

Franchisors who breach the Code will risk new civil penalties. The Australian Competition and Consumer Commission (ACCC) has been given the power to begin enforcing the Code, including the power to issue infringement notices and increased audit powers. If a penalty imposed under an infringement notice is not paid, the ACCC can take further action including further penalties of up to $51,000.00.

What happens next?

The changes are on their way! So Franchisors need to take urgent steps to ensure their documentation complies with the new Code. Franchisors should also be mindful of the new 'good faith' obligations that apply to their dealings with their Franchisees.

Franchisees should be aware of their improved rights under the changes, and ensure their franchisors are complying with their obligations.

For further guidance about the new Code or any other franchising issues, please feel free to give Mitchell Zadow, Managing Principal and Accredited Specialist in Commercial Law, a call on (03) 8561 3318.

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

,

.

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

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. For further information, contact Mitchell on his direct line (03) 8561 3318.

More on

Commercial Law

A new Franchising Code of Conduct, introduced on 1 January 2015, will apply to all franchises across Australia.

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.