Once the vendor and purchaser have agreed to contract terms, the parties sign the contract of sale, and the purchaser will pay the deposit (usually 0.25%). The purchaser then will have five (5) business days to complete their due diligence of the property (i.e. obtain a pest and building report or strata report) and obtain unconditional loan approval. If the purchaser decides not to proceed with purchasing the property within the five (5) business days, they may rescind (cancel) the contract and the vendor will keep their 0.25% deposit.

It is important to remember that not all contracts will have the benefit of a cooling off period and it is imperative that you contact a solicitor before you sign anything.

A section 66W certificate is a document signed by a solicitor or licenced conveyancer in NSW. The effect of this document is to waive your cooling off period, meaning that you will not be able to get out of the contract without penalty once you have exchanged. Prior to signing this certificate, our office will review the contract with you and discuss the risks of waiving your cooling off period.

In NSW it is the vendor’s responsibility to maintain insurance of the property until settlement. After this time, the risk of the property will transfer to the purchaser. Accordingly, it is important to keep the property insured up until and including the settlement date.

The fees a solicitor may charge in relation to obtaining a grant of probate are fixed and based on the gross value of the estate. Schedule 3 of the Legal Profession Uniform Law Application Regulations 2015 (NSW) prescribes the maximum fees a solicitor can charge for their work in relation to obtaining a grant of probate based on the gross value of the estate assets as follows:

Gross value of estate assets	Solicitor’s costs payable
Not exceeding $30,000	$560 Plus $13.33 for each $1,000 up to $30,000
Exceeding $30,000 but not exceeding $150,000	$960 Plus $5.90 for each $1,000 in excess of $30,000
Exceeding $150,000 but not exceeding $1,000,000	$1,670 Plus $4.47 for each $1,000 in excess of $150,000
Exceeding $1,000,000 but not exceeding $3,000,000	$5,470 Plus $1.66 for each $1,000 in excess of $1,000,000
Exceeding $3,000,000 but not exceeding $5,000,000	$8,800 Plus $1.10 for each $1,000 in excess of $3,000,000
Exceeding $5,000,000 but not exceeding $10,000,000	$11,000 Plus $0.90 for each $1,000 in excess of $5,000,000
Exceeding $10,000,000	$15,500

The prescribed fees are exclusive of GST. A solicitor is entitled to recover GST by charging an amount of 10% above the prescribed fees. Costs in the administration of estates are unregulated. Solicitors must disclose to their clients, before commencing the retainer, their fees, including GST, for work in estates whether costs are regulated or deregulated.

If the estate is small and the assets comprise, for example, a motor vehicle, furniture and personal effects, and a small bank account, then these can usually be dealt with – in the case of a will – by production of the will, a death certificate, evidence of the executor’s identity, a completed withdrawal form and a completed indemnity in the form required by the bank. In this case the executor is personally liable for the payment of the funeral expenses and debts of the deceased, up to the value of the estate, and is personally liable to the beneficiaries for payment of their entitlement.

Where there is no will, in the above circumstances, subject to production of the death certificate, a completed withdrawal form and a completed indemnity as above, and evidence of the identity of the next of kin, payment may be made to the next of kin who will then be liable for payment and distribution as above to the persons entitled.

One disadvantage to proceeding without a Grant of Probate or Letters of Administration is that the person dealing with assets is not able to obtain protection from liability for claims through the publication of statutory notices.

If the will maker is alive

As a general rule, no person has a right to access, receive a copy of, or know the contents of, another person’s will while the will maker is alive. This is because the will (including its contents) is confidential to the will maker.

This means that if a solicitor holds their client’s will, executors, guardians, spouses, children and other family members are not entitled to receive a copy of the will (or know the contents) unless the solicitor is authorised by the will maker to release those details to them.

If the will maker is deceased

If a will maker is no longer alive, the class of persons who can inspect or obtain a copy of the will is very broad.

Section 54(2) of the Succession Act 2006 (NSW) provides that a person who has possession or control of a will of a deceased person must allow all of the following persons to inspect or be given copies of the will:

1. any person named or referred to in the will, whether as a beneficiary or not;
2. any person named or referred to in an earlier will as a beneficiary of the deceased person;
3. the surviving spouse, de facto partner or issue of the deceased person;
4. a parent or guardian of the deceased person;
5. any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate;
6. any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate;
7. any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person (this includes any person who is eligible to bring a family provision claim against the deceased’s estate pursuant to s 57 of the Succession Act 2006(NSW));
8. any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009immediately before the death of the deceased person;
9. any attorney under an enduring power of attorney made by the deceased person; and
10. any person belonging to a class of persons prescribed by the regulations (noting that at the time of writing, no such regulations have been made).

Superannuation death benefits do not automatically form part of the estate of a deceased member. In many cases, the trustee of a superannuation fund will pay the death benefits directly to the deceased’s dependants and in that event the death benefits will not form part of the estate.

However, in some cases a superannuation fund will pay the death benefits, or part of them, to the deceased’s legal personal representative (that is, the executor or administrator of the estate), and in that event the superannuation death benefits will form part of the estate and pass in accordance with the deceased’s will or on intestacy if there is no will.

We operate on a no win, no fee* basis. What often occurs with compensation claims or personal injury claims, is that we will speak with you and obtain any relevant information. If we form a view that you have reasonable prospects of success, we will provide you with that advice and work towards prosecuting a successful claim for you. We will normally be paid upon successful completion of the claim in accordance with the terms set out in the costs agreement. There are specific types of claims, where you will not need to pay us whatsoever as our fees are under some schemes are regulated and funded. We normally also fund the claims generally, but at times we may ask you to assist us by funding some disbursements if there is insufficient information provided initially. This would assist us to investigate the matter, and this is only in rare circumstances. *Other than matters of fraud, our no win no fee on our professional fees applies.

You are not required to engage a solicitor for your family law issues, though in most cases it would be advisable, for example, in matters where things are not amicable.

A family law solicitor will assist with providing advice, explaining your legal rights, and provide you with representation such that you do not have to deal with your spouse or their solicitors directly.

A family law solicitor is especially important in explaining where the law stands. Often times people going through family law separation may do things that aren’t lawful unintentionally, simply because they are not aware of some of the family laws that apply.

Divorce is the legal way to end a marriage formally. This is separate to the financial separation and parenting arrangements.

To be able to get a divorce you need to show that your marriage has ‘irretrievably broken down’. Being separated for 12 months or more, and there being no likelihood of the relationship resuming is a demonstration of this.

Additionally, you or your spouse must:

• be an Australian citizen, or
• live in Australia and regard Australia as your permanent home, or
• ordinarily live in Australia and have done so for at least 12 months before the divorce application.

If you married overseas, you can apply for a divorce in Australia as long as you meet the criteria above.

If parties are amicable, you may reach a mutually agreed way to do this. It is when things are not agreed that things tend to become difficult and likely require legal advice to reach an agreement.

There is usually a four-step process in working out property division, which is summarised as follows:

1. Identify and value the net property of the parties;
2. Consider the contributions of the parties.
3. Consider future needs of the parties; and
4. Consider whether the proposal is just and equitable.