Frequently Asked Questions

Frequently Asked Questions 2017-10-19T22:53:42+00:00

Family & Defacto Relationships

My former partner/spouse and I are separating and we have discussed and agree about how to divide our assets/liabilities, is there an easy way to formally record all of this?

Yes, if there’s an agreement in place, it’s usually straight forward to formalise the agreement reached in consent documentation that records the agreement. Get Started Online

How do I avoid paying stamp duty on transfers between my spouse/partner if we’re separating?

Once an agreement is reached or an outcome determined by the Court, a Court Order or Binding Financial Agreement is the formal means of recording the agreement. By recording the agreement or outcome in an Order or Agreement, then stamp duty is usually waived on real properties being transferred as between partners/spouses. Get Started Online

I’m having difficulty with the other parent of my child/children regarding the time our child/children spends with each of us, what are my options to resolve this?

There are a wide variety of options to progress these issues. After meeting with you we can provide you with advice about what sort of arrangements might be in the best interests of your child/children and then commence negotiations with the other party in a number of ways including writing to them or inviting them to attend a conference with you and your respective solicitors. If negotiations are unsuccessful, we can provide you with legal advice to enable you to institute proceedings in the Family Court of Australia or the Federal Circuit Court for the Court to resolve the parenting issues in dispute. Get Started Online

I’m not sure if I’m in or have been in a defacto relationship but I need to know how the law applies to me?

There are a wide variety of factors that determine if you are or have been in a defacto relationship. How the law determines whether you are in a de facto relationship is dependent on your individual circumstances but includes considerations such as the duration of the relationship, whether you live together or have a child together and the public’s perception of the relationship. Once you provide us with details about your specific circumstances, we will advise you as to if and how the law applies to you. Get Started Online

When can I apply for a divorce?

You can apply for a divorce, after you and your former spouse have been separated for 12 months. If you have been married for less than 2 years special requirements apply. Get Started Online

Is a divorce the same as a property settlement and do they happen together?

No, they are not the same thing. A divorce is the formal order ending the marriage where as a property settlement relates to the division of assets and liabilities and how that should occur. It is possible to do them together, or separately. Importantly, once you are divorced, you only have 12 months to commence property proceedings, after which you’ll need special permission from the Court to do so. Get Started Online

Conveyancing and Property Development

What is Conveyancing?

The Conveyancing process is an essential step in the process of transferring the legal ownership of a property from one owner to another. Our role is to gather information concerning the property and prepare the necessary documentation to ensure the property is legally transferred from the seller’s name into the buyer’s name.

Why do I need a Lawyer?

Our solicitors provide you with comprehensive legal advice if and when required. We advise on your legal rights and obligations prior to signing a Contract and throughout the Conveyancing process.

Many conveyancing matters proceed smoothly, however, in the event that any issues arise throughout the process, we help to ensure your transaction has the best outcome for you.

Why do I need to obtain advice before signing a Contract?

Whether you are buying or selling your property, you should always consult with your solicitor prior to signing a Contract, whether or not the Contract has been prepared by other solicitors or by a Real Estate Agent.

We will ensure the Contract protects your best interests and will advise if any amendments should be made to the Contract prior to signing to avoid any future disputes.

How much does it cost?

Please phone us on 6234 8022 to obtain a direct quote from one of our Property Solicitors.

For after hours enquires, contact our Property Law Partner Will Justo on 0418 567 301.

What happens with rates and land tax at settlement?

Whether you are buying or selling, Council rates and land tax (and body corporate fees if the property is a unit) are apportioned at settlement.

This means that the seller will pay all Council rates and land tax assessed on the property up until the date of settlement, and the purchaser will pay the Council rates and land tax from the date of settlement until the end of the current financial year.

What happens with water and sewerage charges?

After settlement, we complete a ‘change of ownership form’ on your behalf and provide it to the relevant water authority (ie: Southern Water). The water authority has responsibility for apportioning the water and sewerage charges between the buyer and seller after settlement.

Do I have to pay stamp duty?

Duty (previously known as stamp duty) is a tax imposed by the Tasmanian State Government when a person or entity buys property in Tasmania. Almost all buyers have to pay duty, which is calculated by the purchase price of the property together with any concessions that may apply (ie: First Home Owner’s Concessions). Click on the following link for more information: www.sro.tas.gov.au

What happens at settlement?

When we attend settlement on your behalf we exchange all of the necessary documentation and funds to complete the transaction on your behalf.

Settlement is usually attended by both the buyer’s and the seller’s solicitors or conveyancers, as well as any banks that are involved in the transaction.

Do I need to attend settlement?

There is no need for you to attend settlement. We attend the settlement in Hobart on your behalf, and contact you as soon as settlement has taken place.

If you are buying, you can usually then collect the keys from the Real Estate Agent or us following settlement.

If you are selling, we distribute any balance proceeds in accordance with your instructions.

Wills and Estate Planning

What is a Will?

A Will is a legal document which sets out your intentions as to how your assets and liabilities are to be distributed in the event of your death. A Will appoints an Executor to be responsible for carrying out the directions set out in your Will. A Will can also nominate who you wish to be the guardian of your children and can allow you to express your wishes regarding cremation and burial.

Why do I need to make a Will?

Creating a Will can ensure that when you die your assets and possessions go where you want them to. A Will is a way to ensure that your wishes are clearly expressed for those who you care about, your family and loved ones.Through your Will you can set up trusts for young children, give specific gifts, leave money to charity, appoint people you trust to look after your affairs and much more.

If you die without a valid Will, your wishes may be ignored, and your family and loved ones may be left with heartache, confusion, expense and legal difficulty in sorting out your estate.

What is my estate?

People often talk about your Will dealing with your estate, but what is your estate? Assets that form part of your estate can include:

  • Real Property (houses, land etc)
  • Vehicles;
  • Shares;
  • Bank accounts;
  • Personal possessions;
  • Superannuation*
  • Life Insurance*

* Superannuation and Life insurance may not be part of your Will unless your estate is specifically nominated as a beneficiary.

What is an Executor/Trustee and how many do I need?

Someone you trust to carry out your wishes and directions in your Will. Your Executor is also known as your Trustee under your Will.

If you have minor children you will need to appoint two substitute Executors, in addition to your partner (if they are appointed as the primary Executor).

We believe it is important to include substitute Executors in the event that the person you appoint is unwilling or unable to carry out their role.

Your Executor doesn’t need to know the legal aspects of estate planning as most Executors seek guidance from solicitors in conjunction with administering the estate. We can assist your Executors with finalising and administering your estate. Please do not hesitate to contact our Estate Planning and Probate department for assistance.

Do I need to list everything I own in my Will?

Not necessarily. If you have specific gifts you wish to give, such as jewellery to a niece or your favourite watch to your son, this can be listed in your Will, however often if you have extensive personal possessions such as paintings, artwork, or just items of sentimental value, we include a clause which allows you to make lists of these items, and who you want them to go to, and include this with your Will. This allows you the flexibility to buy and sell items, and to change your mind and amend the list from time to time.

Your solicitor will discuss which approach is best for your Will depending on the individual details of your estate.

The items which are not listed in your Will fall into what is called the ‘residue’ which is gifted through your Will.

Can I leave my share of my house to someone else?

Whether you can leave your share of property to someone else depends how you own that property. If you own your house jointly with another person, it can be owned as what is known Joint Tenants, or as Tenants in Common.

If you want to leave your share to someone other than the other owner, you will need to check with your solicitor that you own the property as Tenants in Common. Property in Joint Tenancy automatically passes to the survivor on the death of a co-owner and does not form part of the property distributed through your Will.

Is Superannuation part of my estate?

Supernnuation does not ordinarily form part of your estate distributed through your Will. You should check with your superannuation fund who you have nominated as the beneficiary of your policy in the event of your death. It is vital to regularly update any nominations as some lapse after a period of only three years! There are ordinarily restrictions on nominations under your superannuation policy, which limits beneficiaries to either your spouse, your children, or your estate.

Insurance Law

I have been injured in a motor vehicle accident.
What are my rights?

Generally in Tasmania, if you have been injured in a motor vehicle accident you are entitled to claim scheduled benefits from the statutory insurer, the Motor Accidents Insurance Board, regardless of whether the accident was your fault or not. The Motor Accidents Insurance Board will determine whether or not to accept your claim. If they reject a claim you do have rights in relation to appealing that decision.

If you have been injured by a negligent person in a motor vehicle accident you may be entitled to common law damages.

Your entitlement to make a common law damages claim will depend on the factual circumstances of your motor vehicle accident. There are time limits which apply so you should seek legal advice from Wallace Wilkinson and Webster as soon as you have been injured to ascertain your rights.