We get asked many questions every day. Some are easy to answer, some are more complicated. Some we get asked more frequently than others. To assist you we’ve put together some answers to our most Frequently Asked Questions (FAQs). If you have a question that is not answered below, please give us a call. We would be only too happy to talk to you.
Wills and Estates
What is Conveyancing?
Quite simply, conveyancing is the process of transferring the legal ownership of a property from one person (the Seller or Vendor) to another (the Buyer or Purchaser). There are a number of steps that both the Vendor and Purchaser are required to take during the conveyancing process. Each state of Australia has its own conveyancing process. Purchasers from interstate should understand that your local solicitor may not be able to carry out a conveyancing transaction in New South Wales for you. Even then, there is a great deal of value in instructing a conveyancing lawyer that regularly carries out conveyancing transactions in New South Wales.
For both the Vendor and Purchaser the conveyancing process can feel long, and at times complicated. It can be an anxious time for both. First home buyers can feel a little lost and out of their depth during this time. We will do our best to explain and lead you through the process to make it as straight forward as we can for you.
Normally, the conveyancing process involves three stages:
- Post-contract pre-settlement; and
The pre-contract period is the period before the Vendor and Purchaser enter into the Contract, known as “exchange”. During this period the terms of the contract are negotiated and the Purchaser would carry out some due diligence, such as obtaining a pest and building report, and/or survey. In the period after exchange and before settlement, the conveyancing lawyers for both parties make arrangements for settlement to take place. A Purchaser’s lawyer would normally undertake further due diligence, known as testing the vendor’s title. Following settlement, the Purchaser obtains the keys from the agent, if there is one. The Purchaser’s lawyer will attend to lodging any documents with Land & Property Information necessary to transfer the ownership of the property. However, as most Purchasers borrow money to buy their home it is normal for their bank to lodge the necessary documents.
It is becoming more common for conveyancing transactions to take place electronically. In a very short space of time all conveyancing will be eConveyancing. Electronic conveyancing takes place through PEXA – Property Exchange Australia. Killen & Associates has been carrying out conveyancing transactions through PEXA since November 2016 . It is our goal for all of our staff (solicitors and paralegals) to be PEXA Certified so that we can deliver the best service we can to our clients.
So how can we as conveyancing lawyers help you? First and foremost, we will provide you with fiercely independent advice designed to solely protect your interests. As either a Vendor or a Purchaser you should understand that developers, real estate agents and the other party all have their own interests in the transaction. They do not always match your best interests. If you are planning on buying or selling a home, vacant land, or commercial property then please give us a call. There is no obligation and we’d love to speak with you.
Wills & Estates
Do I really need a Will?
Dying without a Will is known as “dying intestate”. If you die intestate your estate will be distributed according to the rules of intestacy under the Succession Act 2006 (NSW). How your estate is divided will depend upon the family members that have survived you. Normally, your estate will go to a surviving spouse and children. Complications can arise if you have a de facto spouse. In any event, you will have no control over how your estate is distributed. In rare circumstances your estate could go to the government.
Many people do not have a Will, either because they haven’t gotten around to it, think that they are too young to need one, or maybe they don’t think that they have enough assets to warrant having one. However, even a person who is young and healthy will have assets such as a home and other personal property like money, jewellery, furnishings, and vehicles. Further, any entitlement under the Wills of loved ones could amount to hundreds of thousands of dollars at any given time.
Making a formally valid and effective Will means preparing a Will in accordance with the Succession Act that distributes the whole of your estate. The best way to achieve that is to make an appointment to have us draft a Will for you. Even if you have made your own Will, or used a Will Kit, you should seek legal advice to confirm that it is formally valid and effective and properly distributes your entire estate. If you have completed a Will but it is not formally valid or doesn’t distribute the whole of your estate, it is likely that you will be treated as though you died intestate.
What is a Power of Attorney?
A Power of Attorney is a legal document in which you appoint someone to act on your behalf to manage your assets and financial affairs. The term attorney in this sense does not mean a lawyer or solicitor. The attorney is normally a family member, or a close friend. Appointing an attorney gives that person the legal authority to act on your behalf while you are alive. Since it only operates while you are alive, a Power of Attorney does not affect your Will. Your Will only has effect on your death. A Power of Attorney is as important for life planning as making a Will. Many people prepare a Will but do not give the same consideration to appointing an attorney until it is too late.
A General Power of Attorney is only effective while you have capacity to make decisions for yourself. A General Power of Attorney is often used to appoint an attorney to carry out specific transactions. An Enduring Power of Attorney continues to be effective after you have lost capacity to make decisions for yourself. A Power of Attorney is a valuable and useful document, it allows you to appoint an attorney to act for you in a variety of circumstances such as an extended interstate or overseas trip, or for a time when you are no longer able to manage your own affairs.
What is an Enduring Guardian?
Many people focus on planning ahead for their financial and business affairs by making a Will and an Enduring Power of Attorney but do not consider what will happen if they find themselves unable to make lifestyle and medical decisions due to illness or accident.
You can appoint a guardian to make lifestyle, health and medical decisions for you when you are not capable of doing this for yourself. Your guardian may make decisions such as where you live, what services are provided to you at home and what medical treatment you receive. You can appoint a guardian by having an Appointment of Enduring Guardian prepared. The Appointment of Enduring Guardian only comes into effect if or when you lose capacity and will only be effective during the period of incapacity, therefore, it may never become operational. However, it is a good way to plan for the future, particularly for unforeseen situations.
An Appointment of Enduring Guardian and an Enduring Power of Attorney are complementary documents. They can be made separately or together giving you the choice as to who you want to have the authority to make decisions across all areas of your life, if you are unable to make these decisions for yourself.