Show me the Money

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthIt is fairly common knowledge that when you die your bank will freeze any account that is in your sole name. The process to get the bank account unfrozen depends on the amount of money that is in the bank account at the time of death.

Typically (but each bank has different requirements), a balance of under $50,000.00 will mean that the bank will not need to see a Grant of Probate or Letters of Administration. They will however, require various documents to be provided by the deceased’s executor, including the Will, Death Certificate and signed bank paperwork.

If the bank requires the Grant of Probate or Letters of Administration to be provided, then the process becomes a bit more involved.

Closing a deceased’s bank account sounds relatively straight forward and you’re probably thinking it is pretty easy, but practically speaking for many people it isn’t that simple.

For many people having their partners bank account frozen poses quite a challenge.

Let’s look at this practically.

Did you know that a death certificate can take months to be obtained in some cases?

Did you know that a Probate Application cannot be made before a death certificate is issued?

Did you know that once you file a Probate Application it can take months to be granted?

You still might be thinking ok, so it takes some time… But what if your partner, children or other family relied on the money you have in your sole bank account to pay for day-to-day expenses like rent or food?

Could they live for a month or more without access to that money? If the answer is no, then you probably have an issue.

There are some very simple solutions to this problem, such as a joint bank account or ensuring that your partner has access to funds in an account which will not be frozen.

Banks will in some circumstances allow access to a frozen bank account for some expenses, but this is assessed on a case-by-case basis and requires a person to make an application for the funds.

While this seems very simple, we see many people in a situation that cause them significant stress because their partner failed to consider this issue.

It is important to get the proper advice when preparing your Will so contact Everingham Solomons because Helping You is Our Business.

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Zoe’s Law

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthNew South Wales is the first state of Australia which has introduced Laws that makes it a criminal offence to cause the loss of an unborn child.

The legislation came into effect in late March and includes two new offences.

The first is a stand-alone offence which makes it a crime to cause the loss of a fetus. Previously, NSW laws only recognised the loss of an unborn child as an injury to the gestational parent. Now, there is a separate charge for the loss of a fetus.

This new law will be used in circumstances where the parent survives but loses an unborn child because of a crime being committed. This will now apply to a range of crimes including driving offences, bodily harm offences and the like.

This offence can carry a punishment of five (5) years to twenty-eight (28) years imprisonment, depending on the circumstances of the offence.

The second offence will be charged when a gestational parent is killed because of a crime. The punishment for this offence will be an additional three (3) years in prison (added to the sentence for killing the parent).

It is important to note that a person can only be charged with causing the loss of a fetus in circumstances where the fetus is at least 400g in weight or once the gestation period exceeds 20 weeks.

The new legislation also means that family members will also be able to submit victim impact statements to the Court addressing the loss of the unborn child. Victim impact statements are used by the Court when determining what sentence is appropriate for an offender.

The NSW Government have also announced a bereavement payment of $3,000.00 to be paid to the family of the victim/s if a person is charged with one of these offences.

For all your legal needs contact Everingham Solomons because Helping You is Our Business.

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But that’s mine!

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthA common document that many people put in place when completing their estate planning is a Power of Attorney. This allows another person to make financial and legal decisions on behalf of that person.

A person’s financial affairs can be quite intricate and the person who is acting as the Attorney can sometimes be required to make some complicated decisions.

Specifically, the Attorney can be put into a difficult position when the person they are acting for has significant expenses, but there is not enough money to pay for them. The Attorney does not have much of a choice other than to sell some of the person’s assets.

This is quite common when a person becomes elderly or their care needs increase.

In order to pay for care facilities, many people will have to sell some of their assets, such as property, to be able to afford the entry payments.

An Attorney generally also has the power to sell these assets on behalf of another person, but what if by doing so, they are effectively stripping a third-party of their benefit under that person’s Will?

S22 of the Power of Attorney Act 2003 deals with this very issue.

When a Power of Attorney, which has been drafted in accordance with this legislation, sells an asset that has been gifted to a third party under a Will, the Estate of that person will be obligated to account for this, by way of Ademption. This is a fancy way of saying that the Beneficiary, who was disadvantaged by the Attorney’s actions, will receive a cash payment of the net proceeds of sale (or whatever is left over) out of the Estate, before the rest of the estate is distributed.

So even if a person’s gift is sold by an Attorney, they will be compensated for the value of that asset, so far as possible.

If you have questions about Attorney’s duties or more generally Estates contact Everingham Solomons because Helping You is Our Business.

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The name’s Bond. Deposit Bond.

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthDeposit Bonds can be quite useful when buying Property. When you exchange on a Contract of Sale to Purchase property, you will usually be required to make payment of a Deposit, usually in cash, which is 10% of the purchase price.

There are circumstances where this can be tricky though. Maybe your assets are invested and you require some time to access them or perhaps your bank is issuing you a loan which will cover 100% of the purchase price, but your loan funds are not available until settlement.

So, what do you do in these situations? The Vendor will still require payment of the Deposit before you enter the Contract.

Usually, a convenient way to address this situation is to have a Deposit Bond issued. A Deposit Bond is essentially a guarantee from a provider that they will make payment of the Deposit, if a purchaser defaults on the Contract. It is a promise to pay.

Some of the perks of Deposit Bonds are that there are multiple providers of Deposit Bonds in NSW, and they usually can be obtained fairly quickly. But there is usually an upfront fee associated with the issuing of a Deposit Bond.

Each provider will have specific criteria you will have to meet to become eligible for a Deposit Bond, which usually will be that you have an asset base in which they can secure the Bond against.

However, you cannot simply assume that a Bond will be accepted by the Vendor in your transaction. You will need to ensure that the Contract of Sale allows you to make payment of the Deposit by way of Bond.

The other big consideration is that the Deposit that you paid by way of using a Deposit Bond isn’t really paid. It is a promise to pay made by the provider. The amount that you are securing with a Bond will become payable at settlement of your transaction. So, the Bond is really only a temporary placeholder for the Deposit. You will still need to have the full amount payable, in cash, available at settlement.

If a Purchaser defaults on the Contract of Sale in which a Bond has been used in lieu of a cash Deposit, and the Vendor becomes entitled to retain the Deposit, the Vendor can then “cash in” the Bond with the provider. The Purchaser will remain liable to the provider to reimburse the amount of money owed to them.

This generally means that while there are a few extra hoops for the Vendor to jump through to collect a forfeited deposit, from the Vendor’s perspective accepting a Deposit Bond instead of a cash Deposit when you are selling, is relatively low risk.

If you have questions about Deposit Bonds, or purchasing property in general, contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Sarah Rayner.

All I Want for Christmas is You

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthIf you want them for your own…… more than they could ever know…… then you should know there has been recent changes in sexual consent Laws in NSW.

NSW Parliament has recently passed consent reforms to assist with the prosecution of sexual offences in NSW Courts in attempt to clarify and make the approach more “common sense”.

So what are the changes?

The new reforms require for there to be consent to sexual activity, a person must now expressly say or do something to communicate consent.

It further puts the onus on the parties to do or say something to find out if the other person consents to sexual activities.

The reforms aim to overcome Defendants of sexual assault charges from being able to suggest they have ‘reasonable grounds’ to believe that the other person had consented to the sexual activity, without taking steps to establish consent. Defendants will now be required to prove they took steps to ascertain that consent was given by the other person.

Under the new law, a person cannot reasonably believe that the other person has consented simply because they did not say “no”.

The legislative reform does not amend the requirement that consent must be free and voluntarily given. Nor does it stop a person from withdrawing their consent at any time.

And just as a brief reminder while we are on the topic of consent, the legal age of consent for sexual activity in NSW is 16 years. A person cannot give consent if they are under that age. A person also cannot give consent if they are asleep, unconscious, drunk or affected by drugs.

If you require legal assistance, contact the Solicitors at Everingham Solomons because Helping You is Our Business.

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The Unwelcome House Guests

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthKnock Knock,
Who’s there?
The Police.
The Police who…..Oh.

Despite the terrible, knock knock joke above, there are times when the Police are legally allowed to enter your home without an invitation. And sometimes they don’t even knock!

The Legislation that gives Police their power of entry is the Law Enforcement (Powers and Responsibilities) Act 2002.

The Legislation allows legal entry to a property in the following circumstances:
1. By invitation.
2. In an emergency.
3. In the event of a breach of the peace.
4. To arrest or detain a person.
5. To exercise a warrant.

By invitation

It is not necessary for more than one occupant to extend an invitation into the house. If one occupant allows entry, and Police suspect that the safety of one occupant is at risk, they are able to stay, despite the lack of invitation from other occupants.

Remember however, if the Police are invited into your home, and they see something illegal, that gives them the power to search the premises. This may lead to further issues for you, so be careful if you extend the invitation.

In an emergency

Police may enter a property if they believe that a person has sustained significant physical injury or there is an immediate risk of significant physical injury. They must only enter if they have reasonable grounds to believe that.

In the event of a breach of the peace

If there is or is likely to be a breach of the peace the Police may enter a Property. They can also enter if it is necessary to end or prevent a breach of the peace.

To arrest or detain a person

Police are allowed to enter a property to carry out an arrest. They can do this with a warrant, or in circumstances where they reasonably believe a person avoiding detainment may be.

To exercise a search or arrest warrant

It should be noted that the Police can carry out a search warrant without you being home, pending the terms of the warrant. This kind of warrant is referred to as a covert warrant, and they must be given the specific covert powers when the warrant is granted.

But unlike those pesky house guests that just won’t leave, the Police are required to only stay as long as is reasonably necessary for them to carry out their specific duties.

Contact Everingham Solomons if you need assistance with the police because Helping You is Our Business.

National Firearms Amnesty

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthRecently, the Federal Government announced a permanent Australian-wide firearms amnesty, commencing on 1 July 2021. The amnesty will allow a person to produce illegal or unregistered firearm or firearm related item for registration, sale or destruction without penalty. The process of producing firearms for sale or destruction, can be done anonymously.

Items for surrender can be produced to your Local Police station or to a participating licenced firearms dealer.

Should you wish to surrender a firearm or related item/s for destruction, there is no cost to do so.

There is also the option to surrender your firearm with the view to registering it and adding it to your licence. This can be done at the Police station or at a licenced firearms dealer as well. There are some fees that are associated with this including registration fees and fees for a replacement (once updated) licence. There is no guarantee that the firearm can be registered, but the Police or your firearms dealer can provide further details on the requirements.

You may also be able to enter into a private sale arrangement to sell the firearm to a Licenced Firearms dealer. This will have to be negotiated between the dealer and yourself, but the amnesty makes provisions for this.

The Police and registered dealers will also accept the surrender of any registered firearms that are no longer required or wanted.

Don’t forget to book in for an appointment in advance with the Police or firearms dealer, because if you get caught with the unregistered firearms, fines and penalties will apply!
For help with any firearm offences, contact Everingham Solomons because Helping You is Our Business.

The Death of the Title Deed

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthOver the past few years, The NSW Property Law system has been progressively moving towards a system in which land dealings are being lodged electronically. The electronic system is known as eConveyancing.

Recently, the Office of the Register General has announced the date in which NSW will become a 100% electronic system.

This date is being referred to as the Cessation Date.

The Cessation date of 11 October 2021 brings with it a multitude of changes.

One of the bigger changes to the system is the abolition of the Certificate of Title (CT), or more commonly known as the title deed. The Real Property Amendment (Certificates of Title) Act 2021 now dictates that CTs will no longer be issued when completing a property transaction and further still all CTs in existence will be cancelled.

This will mean that a CT will no longer be a legal document.

However, current advice is that you shouldn’t immediately run to the shredder to destroy any CT you have lying around your house, but that you should retain these Certificates for at least six (6) months after the Cessation date.

The NSW Torrens Title Register will remain the sole way of proving Legal ownership of Property in NSW.

In place of a CT being issued, the NSW Land Registry Service will be issuing an Information Notice.

The Information Notice is said to contain details of the Land affected, the dealing registration number, the date of the dealing and other important information.

With these changes, you can expect that your legal representative will now be required to carry out exhaustive identification checks before they will be able to proceed with your transaction.

For all your property transactions contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Sarah Rayner.

Firearms: To hold and protect

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthWe recently looked at the licensing and permit requirements to obtain a firearm. Following on from that, we now take a look at firearms offences.

We warn you firearms offences carry heavy penalties including substantial imprisonment sentences. As with obtaining a firearm, you must have a genuine reason for possessing one. Genuine reasons include being the owner of a rural property or memberships of shooting clubs.

It is an offence to possess a firearm without a licence or permit. If found to have a firearm without a proper licence or permit, you face a maximum penalty of five (5) years imprisonment.

If you are found with a “Prohibited Firearm” you face a prison sentence of fourteen (14) years. “Prohibited Firearms” can include pump action shotguns and machine guns and many more. You can also be charged for supplying, acquiring, possessing or using a firearm that is unregistered. Unregistered firearms will incur a maximum prison term of five (5) years and supplying, acquiring, possessing or using prohibited firearms has a maximum of fourteen (14) years prison sentence.

You can also face terms of five (5) to fourteen (14) years in prison if you contravene a Prohibition Order. Prohibition Orders are made if you are deemed an unfit person to possess a firearm.

There are also offences for a failure to ensure safekeeping of firearms. These offences range from failure to keep firearms away from a person who is not authorised to use them and failing to store firearms correctly and securely. Penalties range from $2,200.00 up to two (2) years imprisonment for this type of offence.

These are just the penalties with respect to holding firearms, the penalties for the misuse of firearms or using firearms in the commission of a crime are much much harsher.

Firearm offences can be quite complex. If you require legal advice with respect to a firearm offence, contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Sarah Rayner.

Do I have to pay a Rental Bond? It’s the Lease you could do.

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthMost Australians will at some point in their lifetime sign a lease. Whether that be a residential lease for a property to live in, a retail space or for some other commercial endeavour.

Most Landlords will require you to put forth some kind of security deposit/bond in leasing matters.

But what are the requirements for you to do such a thing?

In short security for a Lease is not compulsory. In saying that however, most Landlords will require you to pay one. This gives them some security and goes some way to ensuring that they are not left out of pocket if you damage the property or fail to pay rent.

If you refuse to provide some kind of security, then it is likely that a Landlord simply will not lease the property to you and find a tenant that will.

So what happens to a Security deposit/ bond after you pay it to the Landlord?

Well that depends on what kind of Lease it is that you are signing, so let’s go through them.

Residential

If you are paying a cash security then Landlords are legally required to give you the option of lodging that security with the Rental Bond Board. The Rental Bond Board is a NSW Government run facility which is managed by Fair Trading. It allows both Tenants and Landlords to make a claim for the security in certain circumstances. It also protects the Tenants security by not allowing Landlord to make a claim for the security without cause.

If the Landlord is managing the property without an Agent, then they have ten (10) working days to lodge the security with the Rental Bond Board.

If the Landlord has engaged an Agent to manage the property then the Agent has ten (10) working days after the end of the month to lodge the security with the Rental Bond Board. We also note that a Landlord cannot require you to pay security of more than four (4) weeks rent.

Retail

A cash security paid with respect to a Retail lease must be lodged with the Retail Bond Board NSW, this is a NSW Government run facility very similar to the Rental Bond Board. The security must be lodged within 20 days from receipt of payment.

Commercial

There is no requirement for a Landlord to lodge the security with a Government agency. Commercial leases usually have a provision that notes that the Security Deposit is to be held by the Landlord.

An alternative to paying a security deposit/bond is a bank guarantee. A bank guarantee is a promise given by a bank or lending facility to pay money to the Landlord if the Landlord makes a claim. They are issued for a certain amount and any claim cannot exceed that amount.

Leasing can be complex, overwhelming and is usually a big legal commitment so if you need assistance with a lease, contact us because Helping You is Our Business.

Click here for more information on Sarah Rayner.