What are your responsibilities as an executor?

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1 News ISSUE 9, AUTUMN 2013 What are your responsibiities as an executor? You have agreed to be the executor for a friend or famiy member. Now the time has come to discharge your duties but where do you start and what are you required to do? What is an executor? An executor is the person who has been named in a Wi to administer the estate of a deceased person. In broad terms, the executor takes charge of the estate of the deceased. The roe incudes coecting a assets, paying a outstanding debts, charges and taxes and distributing the net assets to the beneficiaries, in accordance with the wi. Who can be an executor? There can be one or more executors, but there shoud not be more than four. Executors must be over 18 years of age and can be famiy members or friends. Beneficiaries of the wi can act as executors. It is common for a awyer, or partners of the ega firm who prepared the wi to be named executor; often with a famiy member or friend. What are the first jobs of an executor? The first job of an executor is to ocate the wi. The wi may have information on the funera wishes of the deceased. Funera arrangements are usuay handed by the famiy, in consutation with the executor. What happens after the funera? After the funera the executor compies a genera ist of a the assets that the deceased owned or was entited to. Our firm assists executors in tracking down detais of the assets and estabishing their vaues as at the date of the deceased's death. This is done by contacting financia institutions, companies and searching records, such as the Lands Tites Office and Uncaimed Money Registers. Assets such as property, cars, cash reserves, bank accounts, shares and investments, insurance poicies, superannuation, jeweery and househod items are often invoved. If there is more than one beneficiary, vauations of the assets may aso need to be arranged. We assist executors to ascertain if there are any debts, taxes or other charges that are payabe by the estate. Grant of Probate Executors are responsibe for appying to the Supreme Court for a Grant of Probate. With our assistance, certain documents are prepared and submitted to the Court. Once obtained, the Grant of Probate aows the executor to administer the estate in accordance with the terms of the wi....continued on back page

2 Litigation & dispute resoution 2 Adverse Possession How to safeguard your property investment. What is Adverse Possession? Adverse possession aows an occupier of a piece of and to obtain ownership as against the ega owner. In order to do so, the occupier must be abe to prove continuous and excusive possession of the and for at east 15 years, supported by an intention to permanenty deprive the ega owner. In Victoria, you can appy to the Land Tites office for a vesting order to obtain ega ownership of the occupied and. The appication requires you to produce supporting evidence. This incudes a fu survey by a icensed surveyor and evidence of excusive possession verified by statutory decarations from disinterested witnesses (such as neighbours). Adverse possession caims cannot be made against Crown and or counci-owned and. A case study Wendy purchased her inner-city property in 2000 and then competed a renovation in Unfortunatey, Wendy negected to have a icensed surveyor conduct a survey of her property boundaries either at the time of purchase or renovation. Wendy ived happiy in her home for the next 10 years. Troube arose in 2012, when a neighbour conducted a property survey, prior to buiding two townhouses on his and. The survey showed that Wendy s house encroached on his tite. The neighbour is now demanding that Wendy move her house or pay him compensation. Due to her oversight, Wendy now has a significant ega probem. Unfortunatey she cannot succeed with an adverse possession caim as she has not occupied the and encroached upon for the required 15 year period. It is ikey that resoution of this issue wi be both compex and costy as we as creating tension between her and her neighbour. What can be earnt from Wendy? Check tite boundaries when purchasing or renovating. Check tite boundaries when repacing fences. Get a survey done to confirm tite boundaries. If any discrepancies arise - contact TDE immediatey. pease contact Louise Toson at

3 Famiy Law 3 Divorce FA (Frequenty asked questions) Navigating a divorce can be an emotiona and confusing time. For many peope, a divorce is the first time they have any experience of the ega system. At TDE we encourage our cients to ask questions. It is not uncommon for the foowing questions to be asked by our famiy aw cients. At a times, we endeavour to answer questions in a practica and pain-speak stye. Can I get a divorce in Austraia if I got married overseas? Answer If you are an Austraian citizen or you usuay ive in Austraia but were married overseas, you can appy for a divorce in Austraia. If the Marriage Certificate is not written in Engish, you have to provide a certified transation of it. You may aso need to fie an affidavit from a awyer or Notary practising in the country where you were married, stating that the marriage was carried out in accordance with the aw of that country. What do I have to prove to get a divorce? Answer In Austraia, we have a system of "no faut" divorce. Adutery, desertion and cruety are no onger grounds for divorce. If you have been married for more than two years, you must be separated for 12 months in order to obtain a divorce in Austraia. Separations are often messy. If you separate and then reconcie, but again separate within three months, you can count the first period of separation, in addition to the ater period of separation. You must show a tota period of 12 months separation to the Courts. For exampe, if you separate in January, 2013 but reconcie in Apri, ony to separate again in May, you coud obtain a divorce 10 months after the second separation, namey March This is because the two periods of separation added together make a tota of 12 months separation. If you have been married for ess than two years, you need to attend a famiy counseor and fie a certificate from the counseor saying that you have considered reconciiation before the court wi grant you a divorce. How can I get a divorce if my husband won't eave the house? Answer You can obtain a divorce if you are "separated under the one roof". Having separate bedrooms is not enough to show that you are "separated under one roof". You must prove to the court that you have been separated for 12 months, even though you are both sti iving in the same house. This incudes showing that you have not been seeping with your husband, you have not performed domestic services for him such as shopping, cooking, ceaning, washing and entertaining his friends. To satisfy the court that you have been separated, you shoud fie an affidavit saying that you have not performed any domestic services for him for 12 months. In addition, you shoud fie an affidavit from famiy or friends confirming that you and your husband have not presented yourseves as a "coupe" and that you have ed separate ives for 12 months. Do I have to get a divorce before I can have a property settement? Answer You do not need to be divorced to have a property settement. Some peope, who are permanenty separated, never appy for a divorce on reigious grounds. This does not prevent them from dividing up matrimonia property, either by agreement or by making an appication for property division to the Famiy Court or Federa Magistrates Court. If you have not aready divided your matrimonia property, it is important to fie an appication for property settement within 12 months of the divorce taking effect. If you do not make an appication within 12 months of being divorced the situation becomes more compex. You cannot make an appication without first obtaining eave from the court for an extension of time to fie your appication for property settement. To obtain an extension of time, you have to fie an affidavit expaining why you had not appied for property settement within 12 months of your divorce becoming effective. How much woud it cost me to get a divorce? Answer The Federa Government has imposed a fee of $ which you have to pay to fie an appication for a divorce in the Federa Magistrates Court. However, if you are on a pension or you are suffering financia hardship, you can make an appication for the fee to be reduced to $ How can TDE hep you? Our Famiy Law practitioners, Randa Bradshaw and Eiish Cooke understand that reationship breakdown is a stressfu ife event, especiay if chidren are invoved. Their aim is to ensure that our cients understand what is occurring and are supported each step of the way through the process. Both Randa and Eiish can assist you in reation to a the questions answered above. They work with cients to resove matters as prompty and cost effectivey as possibe, often through mediation negotiation. Mediation minimises the emotiona and financia stress aowing you to re-estabish your ife as quicky as possibe. If mediation proves to be unworkabe, they are skied at representing cients through the Courts. At a times, they guide you through the process with compassion, understanding, expertise and support. pease contact Randa Bradshaw at or Eiish Cooke on

4 Property Law 4 Lost or destroyed certificates of tite what shoud you do? The certificate of tite to your property is a very important document. Certificates of tite prove ownership of property. In most cases they are issued to one of the registered proprietors (i.e. owners), mortgagee (i.e. bank or other ender) or a awyer or conveyancer on behaf of these groups. Where shoud you begin your search? Conducting a thorough search is the first and most important action when you think you have ost your tite. It may sound obvious, but it is important that you check through your own persona papers, fies and safe; contact your awyer to see whether it has been paced for safekeeping in their strongroom and ask at your bank to ensure that they have not forgotten to forward it to you when you paid off your mortgage. In the event that the property is owned by more than one proprietor, a check through each proprietor s documentation is necessary. Conducting an issue search Assuming that the tite sti cannot be found, the next step is to conduct an issue search through Land Victoria. This action wi identify the party to whom the tite was ast issued by Land Registry. In many cases this provides the vita information required to ocate the document. Appying for a repacement certificate Assuming that the tite is sti ost, you wi need to appy for a repacement certificate. This requires the competion of an Appication for a New Certificate of Tite in Pace of One Lost or Destroyed - Form 10, from Land Victoria. To compete the form successfuy, you must show evidence that a reasonabe searches have been made. Statutory decarations from a registered proprietors of the and and severa witnesses to expain what has happened to the mispaced certificate are often part of the process. In some cases, it may be necessary to pace advertisements in a newspaper, as advised by Land Victoria. Each appication invoves the payment of a registration fee, in addition to an indemnity contribution to Land Victoria. The eve of the indemnity contribution varies and is determined on the vaue of the and and the circumstances surrounding the oss of the certificate of tite. The maximum contribution is $600 for and that has a vaue of over $500,000. How can TDE hep you? The repacement of ost tites can be compex and require the assistance of a soicitor. We can hep you with working out your search strategy, conducting an issue search, odging an appication for a repacement certificate, contacting banks and witnesses and the preparation of statutory decarations. When the tite is repaced, we can then hod it in our strongroom for safekeeping. Hoding ega documents in safe custody is a vauabe service that we provide to our cients free of charge. pease contact Pau Webster at

5 Business & Commercia Law 5 Maximising the security of your commercia tenancy agreement. Business cyces bring a range of ega issues. During times of economic chaenge, the security of commercia tenancy agreements more commony requires ega intervention. In times of economic uncertainty how can andords maximise the security of their commercia tenancy agreements? The answer to this question ies somewhere in the maxim: prevention is better than cure. It is impossibe to safeguard competey against tenancy defaut. However, there are severa things that can be done at the outset of the transaction to protect Practitioner Profie the position of the andord against the unfortunate event of defaut. These are summarised beow: If the ease is taken out in a company name, obtain persona guarantees from the directors of the company. Before entering into the ease, the andord shoud instruct an agent to obtain a comprehensive ist of assets and iabiities of the tenant and any guarantors. The agent shoud obtain documentary evidence of the ownership of assets or proof of the eve of any debts. This can be substantiated via current tite certificates of any properties owned, share certificates and bank statements etc. Do not pace too much reiance on assets such as superannuation, motor vehices or househod contents. In the unfortunate incidence of defaut, they are often difficut, if not impossibe, to execute against. Have prepared and signed professionay drawn ease agreements. These can then be enforced, if required, in the event of tenancy defaut. The quaity of your tenant is an important component in maximising the security of your commercia tenancy agreement. Spend the time at the outset to ensure that you have propery vetted your essee. This wi pay dividends in reducing the ikeihood of defaut, or in assisting with the recovery of your osses shoud the worst case scenario occur. In a cases we advise you to contact us before instaing a new tenant into your commercia property. Our eary advice can assist in maximising your investment and minimising the risk of this transaction. pease contact Pau Webster at Eiish Cooke Soicitor, Famiy aw Eiish Cooke is we known to many of our cients who utiise our famiy aw services. Working aongside Randa Bradshaw, Eiish conducts a broad range of work incuding issues reating to marriage, de facto and same sex reationships, parenting and chidren s issues, property settements, binding financia agreements, divorce, intervention orders, spousa maintenance and chid support. Why have you chosen to practise in the area of famiy aw? One of the main reasons that I have chosen to practise in famiy aw is due to the variety of work this fied entais. In particuar, I enjoy drafting documentation and appearing in Court on a reguar basis. Having spent 7 years at the Bar, I enjoy and have a deep appreciation for the roe of advocacy. I aso enjoy the cient interaction and forming cose professiona reationships with cients at a time of great need in their ives. What have been the highights of your career? I have enjoyed a varied career, but with a particuar interest in the area of aw as it affects famiies. Over the years I have sat on government boards making decisions on refugees, workers compensation and guardianship and administration matters. I have aso spent 7 years at the Bar, working primariy in Famiy aw. My professiona ife has now come fu circe with my roe as a Soicitor in the Famiy Law department of TDE. What makes a good famiy awyer? Without a doubt a good famiy awyer must be abe to quicky gain the confidence and trust of their cients. We are deaing with peope at a time of great stress in their ives. We must be empathetic, practica and be abe to guide our cients through one of the most difficut chaenges they wi face. What are your interests outside of work? Outside of work you can generay find me with a book in hand! I have a passion for cassica history. I reay enjoy overseas trave with an emphasis on visiting cassica sites from the ancient word.

6 Private Cients News 6...continued from front page Payment of any expenses Once probate is granted, TDE assists with the sae or transfer of investments and property, as we as accessing any proceeds from bank accounts. We assist executors to pay a outstanding expenses incuding funera costs, taxes and other debts. Taxation issues and distribution of the assets In many cases, it is important that a fina taxation return is competed and odged. Awareness of the impications of Capita Gains Tax is imperative. Our practitioner, John Toohey, is a registered Taxation Agent and conducts work of this nature on behaf of our cients. Once the fina tax iabiity has been estabished, we prepare detaied financia statements setting out a the assets coected by the estate and expenses paid. Before any distributions to beneficiaries occur, TDE prepares a distribution statement for the approva of the executor. What if I don t want to be the executor? As you can see, the roe of the executor is demanding and time consuming. At TDE we take great care in assisting you through this process in the most timey and professiona manner, to make it as smooth and easy for you as possibe. However, if you decide that you cannot undertake the roe of an executor you can renounce your executorship. We can assist you with the preparation of the necessary documents shoud you wish to go down this path. pease contact Ines Kaweit at How can TDE hep? Our firm assists executors undertake their responsibiities, guiding you through this process. We can hep you with: attending to funera arrangements; notifying any banks, insurance and other companies and other reevant organisations of the death; ascertaining and taking contro of a assets; identifying the beneficiaries and their entitements; obtaining the grant of probate or etters of administration; resoving a estate iabiities and disputes which wi incude setting fina income tax iabiity and may aso incude waiting for the sixmonth period after the grant during which time famiy caims against the estate can be started; distributing assets to beneficiaries: either by transfer or by sae of assets and distributing moneys reaised; prudenty investing funds or managing the assets of the estate on behaf of beneficiaries; keeping property hed in trust (e.g. for the ife of beneficiaries) in good repair, insured and covered for rates and taxes; acting impartiay and in the best interests of a beneficiaries. compiing and maintaining estate accounts and, where required, records for capita gains tax purposes. Notary Services provided by TDE Did you know that TDE offers notaria services? In certain circumstances, you may need to sign a ega document from a country other than Austraia or send a ega document overseas. Some of those documents must be witnessed by a notary. Notaries are recognised wordwide as quaified witnesses of documents of a kinds. Documents deaing with and overseas, overseas estates, or to do with migration or the certification of copies of documents for overseas, often require the services of a notary. Whoever sends you or asks for the document for overseas wi usuay te you if it needs a notary. Our practitioner, John Henry, is one of a sma number of practising notaries and assists cients requiring these services. Pease contact our office to make an appointment with John, shoud you require this type of assistance. Tohurst Druce & Emmerson incorporates the firms of Gavan Duffy & King, Doye & Kerr, Pugisi, Heffey & Pavidi, Louis S Lazarus, Gibert Be and D Condon & Co. If you wish to change your contact detais or no onger wish to receive this pubication, pease contact our office on (03) The information in this newsetter is not intended to be a compete statement of the aw reating to the issues raised. Accordingy, no person shoud rey on this information without obtaining specific advice from awyers. Liabiity imited by a scheme approved under Professiona Standards Legisation. Tohurst Druce & Emmerson Leve 3, 520 Bourke Street Mebourne VIC 3000 Teephone Facsimie

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