Protecting your Interest with Wills & Deceased Estates
Where there are people with property, money and assets, then they should have common sense to have a Will in place, a solicitor prepared, signed and executed document of your last will and testimony, of the succession of your estate, upon your death. People living in Australia, are reluctant to make a Will. That Aussie attitude, “She be right Mate, the family will get the house”, raises its ugly head again, similar in the earlier chapter, “She be right Mate”, over termites. The “She be right Mate, the family will get the house”, is now a dangerous one, when there is no official Will in place.
Each state and territory in Australia, has a similar Succession Act, with the Supreme Courts having jurisdiction. Recent rulings, on Wills Probate and Succession of Estates (including property), is now a “Wake Up” call to everyone. First aspect, the Will must be prepared by your solicitor / lawyer, signed and executed, to be valid. For a cheap and lazy way, to save time and money, most people in Australia, simply go to an Australia Post outlet and pay $25 for a Do It Yourself Will Kit. Big mistake !
A Queensland Supreme Court ruling in 2013, the Case of John William Panigas (deceased), ruled the deceased’s Will (from the Australia Post Do It Yourself Will Kit) was INVALID, as it WAS NOT prepared and signed by a solicitor, with the appropriate qualifications, skills and experience, to be valid. The Queensland Supreme Court then ruled on the disbursement of the deceased’s estate, which was different, from how it was to be disbursed, from the deceased’s Australia Post Do It Yourself Will Kit Will.
Make sure your Will is done by your solicitor / lawyer, that is valid and binding, to avoid the experience for your beneficiaries, which occurred in this John William Panigas (deceased) case.
Second aspect, your Will must cover your property, including mortgage details and mortgage re-payments. Probably the saddest case in this book, Stevens V Bank ,but a big wake call to everyone, to have a Will in place, especially if you have property and a mortgage. Stephanie Stevens’s husband, before he died, owned the family home by himself, as a sole owner, with a mortgage (Bank West) and sadly, no Will in place. They were a young couple, with a young family (Stephanie pregnant with their first child). The couple could not be any more happier with their lives. Then, suddenly, a motor bike accident involving Ryan who died, changed many things. Ryan did not leave any Will in place, he was the sole owner of the family home and has a mortgage on the title, with Bank West. No one in the family, kept up with the mortgage repayments. Six months Ryan’s death, Stephanie gave birth to a baby boy, at the same time, Bank West took steps on mortgage foreclosure and a mortgagee sale. Stephanie grieving widow and her new born son was evicted by Bank West. The bank with their legal team, refused to listen to Stephanie’s pleas, that includes her parents providing her with the $30,000.00 the mortgage arrears and to go guarantors for her. Adding to her and her family’s injuries, BankWest sold the property for $450,000.00, in which her late husband, paid $520,000.00, some five years beforehand. BankWest claim her late hsuband’s life insurance, to cover the balance of the mortgage owing. BankWest’s position was of greed, not of customer service. This very sad story, which are lessons for every Australians, must have a Will in place and don’t let greedy banks give your further injuries, after a death in the family.
Deceased estates with wills and probate for families, who have loved ones died and beneficiaries at peace with each other, it’s a simple process. Once the executor of the deceased estate gone through the time and processes, then in a position to disburse assets and other items, can through with a conveyancer/solicitor, prepare and submit a transmission application to the land titles office, with the prescribed fee, with certified copy of the Will Probate/Letters of Administration from the Supreme Court and the eNOS (Notice of Sale/Transfer). If there is a mortgage on the title, you would also require a copy of the written consent, from the bank/mortgagee. Sometime the transmission application can straight forward, taking from a few weeks to a few months. Ones with a mortgage in the title, some banks/mortgagees are responsive and others take a long time to respond, a number of months.
Beneficiaries do run the risk if they put the property on the market for sale, without the transmission application coming through in the first instance. If not waiting for the transmission application, they instruct the conveyancer/solicitor to prepare the Contract, which the Vendors on the Contract front page, is different from the title search, having a special condition in the Contract about the wills probate and the transmission application contract. This special condition usually gives a fixed time frame, say six or nine months, in which the transmission application comes through during that time, the purchaser has a right to rescind. Vendor run the risk of the purchaser of rescinding, becoming frustrated, when there is a hold up with the transmission application, on their part of with a bank/mortgagee.
ABS Conveyancing are not Wills Probate lawyers, who can prepare wills or manage Wills Probate. If wishing to get a Will done, or have a Wills Probate matter, we can refer you to a lawyer who handles these type of matters.