Initially, you need to establish if the deceased person had a Will, to determine who the executor is, that is who can manage the Estate.
Next, has a grant of probate been obtained by the executor? If no, you will need to provide further information to the ATO if you wish to establish authority to deal with the tax affairs of the deceased person. If probate has been granted, then the executor has authority to notify the ATO of the person’s death and deal with their tax affairs.
Notifying the ATO of the person’s death can be in paper by completing a “Notification of a deceased person” form with a certified copy of the Death Certificate and Will and submitting it by mail. By doing this, you will have officially notified the ATO of the person’s death and made the ATO aware of the relevant parties acting on behalf of the deceased Estate i.e. the executor.
If you do notify the ATO online, you will need to attend an Australia Post office to provide a certified copy of the Death Certificate and supporting documents.
Alternatively, if you, as the executor have appointed a solicitor to act on your behalf for the Estate, the solicitor can provide the ATO with this information. However, you may be contacted by the ATO to confirm these details.
Do you need to lodge a final individual tax return? This is called a “date of death tax return”. As to whether you need to lodge this form will depend if the deceased:-
• had tax withheld from income they earned
• earned taxable income exceeding the tax-free threshold
• had tax withheld from interest or dividends because no TFN was quoted to the investment body
• lodged tax returns in prior years prior to their death
• should have lodged tax returns in prior years.
If a tax return is not required to be lodged, you need to complete a “non-lodgment advice” for the tax year and send it to the ATO.
Do you need to lodge a tax return for the deceased Estate? This will depend upon the assets of the estate and if any income is received or derived by the deceased Estate. If the Estate is not finalised within the income year and there is income derived from the Estate, then a deceased Estate tax return will need to be lodged every financial year until the deceased estate is fully administered or disbursed. If a deceased Estate return is required, a tax file number will need to be obtained for deceased Estate.
The above information is a general guide only. For enquiries regarding tax, we recommend you contact the deceased’s accountant or the executor’s own accountant to obtain detailed tax advice to finalise the tax affairs of the deceased.
At Everingham Solomons we have the experience and expertise to assist you with any deceased Estate issue, because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
You’ve been saving hard and have the deposit to purchase your first home. You’ve looked at many houses and finally found the one. You’ve made an offer through the real estate agent and your offer has been accepted by the vendor.
You organise your pest and building reports. You know your finance is arranged as you’ve been pre-approved by your chosen lender. WRONG!
A pre-approval of finance from a lender is only an “indication” of the amount the lender considers you may borrow based on your previous financial circumstances. Until you receive written confirmation of finance approval from your lender noting the details of the house you intend to purchase and sign a loan contract, the lender is under no obligation to provide you with finance. If you were to exchange contracts based on the “pre-approval letter”, you may not be able to complete your purchase as the finance has not been formally approved for that house.
Not being able to complete your purchase may result in the vendor being able to terminate the Contract, keep your deposit, sue you for any shortfall in the price upon resale of the property and sue you for costs and expenses associated with your inability to complete the Contract and recover damages for breach of Contract.
Once your offer has been accepted, you need to make an appointment with your lender as soon as possible to complete a loan application for your chosen home. In most cases, your lender will arrange for a valuation of the property to be carried out to ascertain whether it will provide them with adequate security for their loan.
Many lenders need to submit your loan application to their mortgage departments located either in Sydney, Melbourne, or Adelaide. This takes time so you need to contact your lender quickly as this will enable you to safely exchange contracts and secure the property you wish to buy.
Some lenders provide a letter stating your loan has been approved subject to various conditions set out in the loan contract. This means you must wait to see the loan contract document to find out what terms and conditions you must comply with before the loan will be approved.
At Everingham Solomons, we take our role of protecting your interests very seriously. We work hard to help you secure the home you wish to purchase and make sure you do not end up in the position where you risk incurring a significant financial loss because you were unable to complete your contractual obligations. It might seem like it can take a long time before contracts are exchanged, but it’s all in the interests of looking after you – our client, because Helping You is Our Business.
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If you are renting out your property, your property is likely to need maintenance from time to time. You may consider a handyman or woman to do the “easy jobs” like replacing tap washers or taps, repairing or replacing leaking toilets and cisterns as a good low cost alternative to engaging a licensed contractor.
However, when hiring someone to do any plumbing work, you must make sure they hold a current licence. Only a qualified and licensed plumber and/or drainer can legally undertake repairs such as but not limited to:-
Replacing tap washes or taps
Repairing or replacing leaking toilets and cisterns
Repairing or replacing a hot water service
Repairing water leaks
Clearing or repairing blocked sewer lines
Any person doing plumbing repairs for a payment who is not suitably licensed is breaking the law and can be fined $1,100.00. If the person engaging them does so knowing that the work can only be undertaken by a suitably licensed plumber, that person is also breaking the law and can be issued with the same fine.
At Everingham Solomons, we can assist you with your property queries because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
A Grant of Probate is a document issued by the Supreme Court that acknowledges the validity of the deceased’s Will and authorises the Executor/s to administer the Estate.
Whether or not Probate is required depends on the nature and value of the deceased’s assets.
If the deceased held land in their sole name or as tenants in common with another, Probate will be required.
Financial institutions, superannuation funds, aged care facilities and share registries may also require Probate for larger investments before they will allow those assets to be dealt with. Generally, such institutions will require Probate if the amount held with them is greater than $50,000.00.
What is involved in obtaining a Grant of Probate?
Ascertain assets and liabilities as at date of death
File an online Notice of Intention to make an application for Probate
14 days after the date of publication of the notice of intention, prepare and file a Summons, Grant, Affidavit of Executors, original Death Certificate, Inventory of Property and original Will with the Supreme Court.
It takes the Supreme Court approximately 4 weeks to issue a Grant of Probate. Once the Grant has been obtained, the Executor/s are entitled to deal with the estate assets and liabilities and distribute the surplus assets to the beneficiaries in accordance with the Will.
If a person dies without a Will, or with a Will but with no living Executor, the same process applies however the grant is called Letters of Administration.
The solicitors at Everingham Solomons have the knowledge and experience to assist you in dealing with a deceased estate because Helping you is Our Business.
Click here for more information on Suzanne Hindmarsh.
Quite often I come across sellers, testators and mortgagors wherein their names are incomplete or otherwise different from their identification documents (ID) i.e. driver’s licence, passport, birth certificate and marriage certificate (if applicable).
The spelling of your name is critical when preparing any legal documents for example your Will, Power of Attorney, Appointment of Enduring Guardian, sale and purchase of land contracts, mortgages and transferring shares.
These discrepancies can result in delays finalising your property transaction, in some cases breach of contract, issues with selling your shares and can result in increased transaction costs, delay and frustration.
There are many reasons for the inconsistencies, however the most common are:-
Anglicised names (which buyers/sellers/shareholders may commonly go by in day to day life) are not always the same names as reflected on their legal ID documents
Marriage (or breakdown of marriage) where the seller has changed their name since purchasing the property or shares
Missing middle names, which buyer/seller/shareholder may not use all the time, accidently being omitted from the legal documents i.e. Contract for Sale or Purchase of Land/share transfer forms/will/power of attorney etc
Old errors, perhaps from missing or incorrectly spelt names when a seller originally purchased the property or data entry errors made by land registry at the time
Foreign names where there is unfamiliarity. In some cultures, the christian name is written last and the surname is written first for example, Liu Jianguo, in Chinese would be Mr. Jianguo Liu using the Western style.
As we are moving towards a more digital world, it is becoming more important for us to use our full legal name set out in our identity documents, and to ensure our full legal name is used on all documentation in any legal process.
At Everingham Solomons, we have the expertise to assist you because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
As some of you may be aware, land transactions have been moving over to an electronic platform called PEXA. This involves the settlement and registration of a land transaction into the new owners and mortgagee’s name, instantaneously on settlement.
It is anticipated that by 1 July 2019, electronic settlements will be compulsory in NSW.
All paper titles of land held by about 150 banks were converted to electronic certificates of title called eCT’s in September this year. The conversion of the titles was undertaken by the banks and other financial institutions, the NSW Land Registry Services and the legal and conveyancing peak bodies with many people working behind the scenes for months.
As there are now over 2 million eCT’s and more solicitors and conveyancers becoming registered PEXA subscribers, there is a greater chance of your purchase or sale being settled through the PEXA system.
If you own a property and have a paper title, how do you deal with your land if you wish to sell it?
Currently in the paper world, if a person wanted to sell their land or give consent to their title being used, they would physically hand the title over to the party who wishes to use it, or produce the title at the Land Registry. In the world of eCT’s, there is no physical paper title to hand over.
Under the PEXA system, a registered proprietor is given the Control of the Right to Deal (“CoRD”) and this is where the registered owner has the authority to consent to the registration of a subsequent interest in land.
If land is mortgaged, the registered proprietor has the right to deal with their land but the control of that right to deal (CoRD) is held by the first registered mortgagee (the bank) or party in legitimate possession of the certificate of title. A mortgagee now provides a CoRD Holder consent electronically in transactions.
If land is not mortgaged, the registered proprietor has both the right to deal and the CoRD and provides CoRD holder consent to that transaction.
In order for a vendor to deal with a paper title and use the CoRD, they need to contact a PEXA subscriber.
Everingham Solomons is a registered PEXA subscriber and we are continuing to extensively invest in training our solicitors and staff to ensure a seamless transition.
At Everingham Solomons, we aim to provide expert advice and manage your transaction with due speed and minimum inconvenience to you, because Helping you is Our Business.
Click here for more information on Suzanne Hindmarsh.
I’m frequently asked what steps need to be taken when someone dies and how long will it take?
The usual steps are:-
Evidence of death is required. In most cases, this is a death/funeral notice published in the local newspaper.
The death certificate is required. This certificate takes about 4 – 6 weeks to be issued by Births Deaths Marriages and provided to the executor/Estate’s solicitor.
The funeral account can be paid from the deceased’s bank account if sufficient funds are available.
We advise the relevant asset/liability holders of the death and provide certified copies of the death certificate. They provide us with details of the deceased’s accounts and their requirements to release the assets/liabilities of the Estate. This usually takes 3 to 4 weeks and the relevant documents are prepared from this information.
If a deceased held land, shares and bank accounts jointly with his/her spouse, the required forms are completed, signed and provided to the relevant registries and bank to transfer these into the surviving joint holder’s name.
If a deceased held land, shares or bank accounts over the value of $50,000.00 in their sole name, probate is required to be obtained. Probate is the document granted by the Supreme Court of NSW to enable the executor the right to administer the Will and carry out the wishes of the deceased.
Once probate is obtained, letters are forwarded to asset holders with a certified copy of probate, the executor’s completed signed forms seeking closure of the accounts, sale/transfer of shares and land is processed and payment of any outstanding liabilities and taxes are completed. Subject to the assets involved, this can take up to a couple of months or so.
After all assets have been transferred/sold as required by the Will and the monies have been received into the Estate’s trust account, the Estate can be distributed in accordance with the Will and finalised.
Whilst all matters are different, the usual time frame to administer an Estate is between 6 and 12 months.
If you need assistance with the administration of an Estate, contact us at Everingham Solomons Solicitors because Helping You is Our Business.
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This is a question commonly asked by both buyers and sellers. Exchange occurs when a seller and buyer enter into a legally binding contract with each other. For a residential property, the following list explains some of the actions required after exchange.
For a buyer:
We prepare the transfer electronically. This allows the land to be transferred from the seller to the buyer after settlement.
We prepare Requisitions on Title. This is a set of questions about the land title the seller is required to answer for the buyer.
We order searches which may include some of the following: Council rates enquiry, State Rail Authority enquiry and Roads and Maritime Services enquiry.
We request a cheque for payment of stamp duty. We electronically stamp the contract and transfer and pay the stamp duty to the NSW Government.
Confer with your financer and satisfy their requirements
We prepare the settlement statement. This statement shows the purchase price, deposit and the adjustment of rates and other costs. The settlement statement is provided to the seller’s solicitor/conveyancer requesting the required breakup of the settlement monies for the seller.
We notify the Australian Taxation Office if GST withholding tax is required on settlement
We arrange the electronic settlement with your bank (if applicable) and the seller’s solicitor/conveyancer and seller’s bank (if applicable).
At the time of settlement, the transfer, Certificate of Title, seller’s mortgage (if applicable) and the buyer’s mortgage (if applicable) is lodged electronically at the Land Registry Services.
For the Seller:
We arrange for your bank to prepare a discharge of mortgage (if applicable)
We assist you to answer questions about your title asked by the buyer.
Obtain land tax certificate
We receive from the buyer settlement figures which are checked by us in consultation with you.
We obtain a Foreign CGT clearance certificate if required
We arrange the electronic settlement with the buyer’s conveyancer/solicitor and with your bank. Your bank provides the payout figure to discharge the mortgage.
We request from the buyer’s solicitor/conveyancer the monies required on settlement.
The next step is what is known as settlement or completion, which is when the actual sale or purchase is finalized and legal title of the land is transferred from the seller to the buyer.
Our conveyancing team is able to help you with the business of buying or selling a property to make the process as smooth and simple as possible, because at Everingham Solomons, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
As of 13 March 2018 for the prevention of children falling from windows, strata schemes must have window safety devices installed on all applicable windows. If window safety devices are not installed by this date, owner corporations may face fines.
Which windows must be covered? Any openable window where the internal floor is more than 2 metres above the outside ground level and being a window that is less than 1.7 metres above the inside floor level. For example, where a lounge room is on the second floor with a large window taking up most of the external wall. This will need a window safety device on this window.
However, if you have a bathroom on the second floor where the window is only small and it is near the ceiling (1.7m or higher above the floor) it will not require a window safety device. Complying devices must also be installed on applicable windows in all common access areas, such as stair landings.
Under the Strata Schemes Management Regulation, 2016 Part 4 Property Management, Section 30, a window safety device is:
“(3) A screen, lock or any other device is a complying window safety device for the purposes of Section 118 of the Act if it:
* is capable of restricting the opening of a window so that a sphere having a diameter of 125 millimetres or more cannot pass through the window opening, and
* is capable of resisting an outward horizontal action of 250 newtons, and
* has a child resistant release mechanism, in the case of a device that can be removed, overridden or unlocked.”
Residents with safety devices installed can still fully open their windows if they wish to do so, but it is strongly recommended that devices be engaged whenever children are present, to prevent falls.
The alternative is security screens, such as bars or grills on the windows so long as they have gaps less than 12.5 cm. Flyscreens do not comply unless they are the reinforced security type and capable of resisting the very strong outward pressure which would prevent a child falling through.
Please note that the owners corporation has the principal responsibility for the installation of window safety devices. Lot owners do however have the right to install window safety devices in their property at any time. However, lot owners would need to pay for the costs involved and must make sure the devices meet the legal requirements. Lot owners must notify the owners corporation within 7 days after completion of the installation. Lot owners who install devices are responsible for any damage to common property from the installation.
Tenants must get written permission from their landlord before installing locks that require drilling. Landlords cannot refuse a tenant’s request unless they have a very good reason.
At Everingham Solomons, we have the expertise to assist you in your property transactions because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Purchasing real estate – is a final inspection necessary?
A final inspection is arranged by a purchaser with a Real Estate Agent to inspect a property prior to completion. The purpose of this inspection is to ensure the improvements and inclusions have not been damaged or removed since contracts were exchanged and the property has been left in a clean and tidy condition.
There have been instances where improvements and inclusions have been removed, damage has occurred due to vandalism or removalists, or the property has been left in an unsightly and dirty condition. A purchaser has very little recourse once completion (i.e. handing over the balance of settlement monies in exchange for the title deeds) has occurred to rectify the situation. In our opinion a final inspection is essential.
If a property is being purchased with vacant possession, it is recommended the purchaser contact the selling agent a few days before completion to arrange a suitable time to carry out the final inspection, however you should not do your final inspection until the occupier has vacated the property.
For an investment property subject to tenancy, it is recommended the purchaser should contact the selling agent at least four or five days prior to the completion as under the Residential Tenancy Agreement, a tenant must be given reasonable notice by an agent.
Once the final inspection with the agent has been completed, the purchaser will need to advise their solicitor/conveyancer of the outcome. If any problems are encountered, the purchaser should inform their solicitor/conveyancer of the defects and, on the advice then given, instruct them on how you as the purchaser would like the matter to proceed. If the final inspection is satisfactory, the purchaser will then instruct their solicitor/conveyancer to proceed to completion.
The importance of a final inspection is to ensure that once you have obtained the keys and departed with your hard earned money, there will be no unwanted surprises.
At Everingham Solomons, we have the expertise to assist you in your property transactions because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Initially, you need to establish if the deceased person had a Will, to determine who the executor is, that is who can manage the Estate.