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WHAT IS PROBATE AND WHY DO I NEED A GRANT OF PROBATE?

Blog & Articles, Deceased estates, Estate Planning, Probate, Tang Law

 

What is probate?

Probate is simply the process in which a deceased’s person’s Will is proved by a court as being the last valid Will of the deceased person. In Western Australia the appropriate court is the Supreme Court of Western Australia. Similarly, in other Australian states and territories, the appropriate court is the Supreme Court of that place.

A Grant of Probate confirms that the executor named in the deceased person’s Will has the legal right to deal with deceased person’s estate (i.e. their property, money and possessions).

If the deceased person did not leave a Will, then the grant obtained from the Supreme Court is known as a Grant of Letters of Administration. There are also other types of grants, however these two are the most commonly encountered.

Although there are some technical differences between executors and administrators, for most practical purposes, the roles are essentially the same. In this article we will use the term “Legal Personal Representative” to cover both executors and administrators, and the term “Grant of Representation” to cover both types of grant.

Why do I need it?

A Grant of Representation is evidence to the world at large that the Legal Personal Representative that a person has the right to deal with the deceased person’s estate.

Further, a Grant of Representation is needed to deal with certain types of assets, such as land, bank accounts, shares, superannuation and insurance. Often without a Grant of Representation, Landgate, banks, share registries, superannuation funds and insurance companies will not deal with a person who needs to administer a deceased person’s assets.

There are circumstances when a Grant of Representation may not be needed, for example:

  • the deceased person did not own any assets in Western Australia (a Grant of Representation may be required in other jurisdictions where the deceased person owned any property)
  • if all of the deceased person’s assets were held with other others jointly (such as land, shares or money) as these assets will automatically pass to the surviving owner(s)
  • shares owned by the deceased have a market value of less than $15,000
  • the bank accounts of the deceased have a balance of less than $10,000 (the precise balance before a bank requires a Grant of Representation this varies between banks)
  • the deceased person’s estate comprises only of personal and household effects

How do I obtain a grant of probate?

The executor named in the deceased person’s Will must make an application to the Supreme Court. If the court is satisfied with the application, the court will issue a grant of Probate. If the court is not satisfied with the application, it may issue a requisition notice. A requisition notice is simply a notice which advises that there is a defect with the application or the court requires more information.

The deceased person’s original Will is retained by the Supreme Court, however a copy of the Will is attached to the Grant of Probate.

How long does it take?

An application can be made at any time after fourteen days from the death of the deceased person. It is necessary for the deceased’s death certificate to be provided in the application.

Once an application for a Grant of Representation is lodged in the Supreme Court, a Grant of Representation generally takes around four to eight weeks, however, this is dependent on the court’s workload.

Please note that this general information only and does not constitute legal advice. If you would like further information or assistance in relation to this issue or other legal issues, please contact Tang Law on (08) 9328 7525 or [email protected].

 
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NEW SUBCLASS 494 SKILLED EMPLOYER SPONSORED VISA – ARE YOU ELIGIBLE?

Blog & Articles, Immigration Law, Immigration Lawyers, Tang Law

 

Subclass 494 visa will replace the 187 (RSMS) visa on 16 November 2019.

This is a 5 year provisional visa.  If you meet the visa conditions, you can apply for subclass 191 permanent visa.

Are you eligible for 494 visa?

You must meet the following:

  • Your employer must be located in a designated regional area of Australia and have obtained approval from the Regional Certifying Body (RCB) in your area.
    • (NOTE: The entire State of Western Australia becomes regional area on 16 November 2019)
  • Your position is on the relevant occupation list. There is over 700 occupations listed in the instrument for 494 visa.
    • The position must be full-time, genuine and likely to be available for five years
    • You must be paid at the market salary rate
  • You hold and obtain positive skills assessment.
  • You have at least three years of full time and relevant skilled work experience.
  • You are under 45 years of age
  • You must demonstrate Competent English

Pathway to Permanent Residency!

You can apply for subclass 191 (Permanent Residence (Skilled Regional)) visa if you meet the following requirements:

  • You hold 494 or 491 visa.
  • You have worked in the designated regional area for at least three years.
  • Either you or your partner made an income of at least $53,900 annually for past three years.

Difference between 494 Visa and 187 Visa

There are 2 main differences compared to the subclass 187 (RSMS) visa:

  1. 494 visa is a provisional visa, not a permanent visa.
  2. You do NOT require the employer’s nomination to apply for the 191 visa.

Are you on 482 Visa?

IF:

  1. You are on 482 visa (especially short-term 2 year visa);

AND

  1. You are on the new 494 visa occupation list;

You should consider switching to 494 visa as soon as possible, as the new 494 visa will give you a pathway to permanent residency through subclass 191 visa, whereas the subclass 482 (short term) visa does NOT allow you to apply for permanent visa.

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

 
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“GUILTY” OR “NOT GUILTY”: ACCEPTING YOUR CRIMINAL MISTAKES?

Blog & Articles, Criminal Law, Tang Law

If you are charged with a criminal offence in Australia, you are generally required to enter a plea (guilty or not guilty) at the initial Court mention and the matter is then dealt with accordingly.   Depending on the seriousness of the charge(s), but almost all minor matters start out in the Magistrates Court, and this is where the first chance is given for a plea to be entered.

Do I Plead Guilty or Not Guilty?

Before entering a plea, serious and careful considerations should be given to factors including:

  • Correctness of the charges;
  • Correctness of the facts giving rise to the charges;
  • The evidence for and against the accused;
  • Personal background and relevant history that might be brought to the court’s attention; and
  • Understanding of the charge in question and the penalty or sentence that is likely to be imposed on a guilty plea.

 

Early Guilty Plea Discount

Accepting your criminal mistakes seems clear and straightforward.   This seemingly simple question (of guilty or innocent) can bring up many technical and ethical quandaries, and requires serious consideration.

In Australia, everyone has their right to a fair trial and also the right to face and question any allegations brought against them, but this does not mean that an individual Accused should always make the State prove what is alleged; this is where the Guilty Plea comes in.

If there is a grey area that is not cut and dry (like with the distinction made above between guilt and innocence) then it does not mean you can have the best of both worlds. An Accused in Western Australia cannot effectively say that ‘I am pleading guilty but I didn’t really do it.’  This is ‘traversing’ the plea and is not allowed, going to show that even the simplest premise has to be properly considered.

Plea Bargaining

When faced with multiple charges, lawyers can speak with the prosecutor for you and attempt to enter into plea bargaining, where effectively, you may agree in advance to enter into a guilty plea for the less serious charges in consideration for the prosecutor dropping the more serious charges against you.

What Do You Need To Do After Pleading “Guilty”?

Telling the truth and informing the court of what really happened is not as simple as it sounds. Accepting your mistakes and entering a guilty plea is only the beginning.  You must fully understand the consequences of pleading guilty before doing so.   If a guilty plea is entered, you must be fully prepared to accept the consequences of the penalty or sentence you may receive from the Court.

An effective legal representative is essential in bringing out the important facts properly. Even when you do not have a Defence (and so you’ve pleaded guilty as charged) there is still a lot that needs to be done in order to reduce the penalty or sentence that you would otherwise receive.

The lawyer should advise you of the supporting evidence (such as reports, references, etc) that will help persuade the Court to give you a more lenient sentence.  The lawyer may even speak with the Prosecutor in order to reach a consensus on possible sentencing options beforehand.

At a sentencing hearing, your lawyer can make a Plea in Mitigation on your behalf.  This is the crucial step when all the information and supporting evidence is pieced together by your lawyer, and light is shone on any facts that may ‘mitigate’ your offending behaviour, in order to achieve the most just, but also the most lenient, outcome for you.

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ABOUT THE WRITER

Adam Ward was admitted into the legal profession in the Supreme Court of Western Australia in 2015. Prior to this he completed undergraduate degrees in both Law and Behavioural Science, and completed his Graduate Diploma in Legal Practice with the College of Law, in Perth.

Adam started his legal career in a small general practice law firm in Perth that specialised in wide ranging criminal law matters. He then joined Tang Law in May 2019 to form part of their already vibrant team and continue working in the areas of law that he’d developed a passion for.

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AUSTRALIAN CITIZENSHIP: THINGS YOU NEED TO KNOW

Blog & Articles, Immigration Law, Immigration Lawyers, Tang Law

“I’ve lived here my whole life, why should I apply for Australian citizenship?”

This is a common question we receive from our clients when the subject of citizenship is raised in the course of providing migration assistance.

For many of our clients who have lived in Australia for the majority of their lives, it is hard to imagine a situation where this could change, and for them to imagine themselves as anything other than Australian, as in the recently reported case of Edward McHugh.

The answer to this question is quite shocking. Since the amendments to the Migration Act 1958 (“the Act”), passed in December 2014, there has been an alarming increase in the number of visa cancellations, in the order of 1400%.

The Department of Home Affairs’ powers to cancel visas are extremely broad. Cancellations under Section 116(1)(e) of the Act, on the basis that the visa holder’s continued presence in Australia is a threat to a segment of the community or good public order, are becoming more and more common, and enable the Department to cancel visas before a finding of criminal guilt is even determined.

Meaning that you could have your visa cancelled before even being found guilty of the offence you are being charged with, and even if you are acquitted at trial, an application for merits review before the Administrative Appeals Tribunal (AAT) is required to reverse the consequential visa cancellation.

This is in addition to the powers under Section 501 of the Act to automatically cancel visas upon the finding of criminal guilt, where you are sentenced to a period of imprisonment of a period of 12 months or more, and which may come with a lifetime ban from re-entering Australia. This ground has been used to cancel the visas of over 1,000 New Zealand citizens over the last two years.

To ensure that a heavy price is not paid for what can often be “one mistake”, a grant of Australian Citizenship is the best safeguard you can obtain to make sure you are not deported from the place where you have expended so much energy to make your home.

Am I Eligible for Australian Citizenship?

The eligibility requirements are fairly straightforward:

  • Satisfy the residency requirement: Be present in Australia for at least 4 years prior to the application, and present as a Permanent Resident for at least 12 months prior to the application.
  • Satisfy the “Character Test”: In order to be successful, you must demonstrate that you have obeyed the laws of Australia over your residence, and that you possess the moral qualities that the Australian community would expect of those wanting to become citizens.
  • Permanent Residency: This is the most challenging aspect for someone to wanting to become an Australian Citizen to overcome. for this, you must either –
    • Hold a Residence visa, allowing you to remain in Australia indefinitely; or
    • In the case of New Zealand Citizens, be present in Australia on, or prior to 26 February 2001.

Although the close diplomatic ties between New Zealand and Australia entitle New Zealand Citizens to a Special Category (Subclass 444) Visa, which enables them to remain in Australia for as long as they choose with unlimited work and study rights, this is only a temporary visa, and those wishing to obtain Australian Citizenship must look to obtaining Permanent Residency first.

There are also various exceptions, which may be available to you if you do not strictly meet the eligibility criteria. For more information on these options, contact us for more information.

Certain additional requirements may be imposed by reason of age and mental capacity. For more information on these requirements, contact our office.

I Have Previous Convictions In Australia or My Home Country, Am I Still Eligible?

The matter of character is more complicated in the context of Applications for Australian Citizenship, the answer is, it depends, but you may still be eligible for Australian Citizenship.

The “character test” for citizenship is more concerned with someone’s behaviour as a whole, and whether an overall assessment of the individual’s conduct is conducive to the view that the person exhibits the moral qualities the Australian Community would come to expect from them.

This is an assessment, which would come down to an assessment of the individual facts of each case.

For more information about applying for Australian Citizenship, appealing from decisions to refuse an application for Australian Citizenship, permanent residency, character concerns, and any other enquiry you may have in relation to the process of applying for Australian Citizenship, we strongly encourage you to contact our experienced migration lawyers for a discounted initial consultation to obtain assistance for your citizenship matters.

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ABOUT THE WRITER

Stephen Mintz joined Tang Law in November 2017 and was admitted at the Supreme Court of Western Australia as Barrister and Solicitor in 2018. Stephen enjoys working in environments that allow him to use all areas of legal knowledge at his disposal to assist and guide clients to develop creative, practical and effective means to achieve their aims.

Stephen has extensive experience in assisting with the provision migration advice in connection with visa applications, as well as, appealing cancelled or refused visas, including, the preparation of relevant documents and submissions for applications for merits review before the Administrative Appeals Tribunal. He has extensive experience in advising clients in the areas of Commercial Law, Criminal Law, and Civil Litigation matters before the Supreme and District Courts of Western Australia, as well as, the Federal Court of Australia.

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SHAREHOLDERS DISPUTE – FROM PROFITS TO LOSSES

Blog & Articles, Commercial Law, Commercial Lawyer, Dispute Resolution, Tang Law

Statistics show that up to 70% of business partnerships ultimately fail.

Many companies start out with the best of intentions between friends or colleagues, unified by a common goal of making profit.  Inspired by optimistic outlook, the necessity of formal agreements are often overlooked. However, when disputes between partners get out of control, it can turn a profitable business into losses – not just monetary loss, but also loss of reputation.

What are the reasons for failing?

Firstly, doing business with friends or family is risky.  Friends or family members often fail to maintain a separation between business and personal relationships.

Other common reason for failure include:

  • Unequal contributions by the partners. Nobody likes lazy partners!
  • Personality clashes
  • Loss of trust in each other
  • Differing values and visions.

A simple handshake to start a business is simply not good enough.  The sad thing is that when business fails, the relationships between friends or family will also turn sour.

Incorporated Business – Potential Problems

Where business partnership is undertaken via a company structure, it can become more complex due to the division of management (board of directors) and owners (shareholders).  Under our Company Law, owners have no right to manage the company.  Hence the first potential problem is that shareholders have no control.   If the company, controlled by the director, fails to carry out the objectives of the shareholders, what can the shareholders do?

Moreover, if you are a minority shareholder and the company decides to dilute your shares, what can you do?   In a company where there are 2 equal shareholders in 50/50 arrangement, if there is a deadlock, what can be done?

Case Study – Director’s Misconduct

Our Client was one of 2 shareholders in a company incorporated to pursue investment opportunities in Australia. The other shareholder was the sole Director responsible for the daily running of the company.  The Sole Director used his authority to transfer approximately $500,000.00 from the company for his personal purpose over the period of approximately 3 years.  Our client only became aware of it after several years.  Our client was denied access to the company books.  This is a classic case of director’s misconduct.

There were no formal documents in place to enforce a system of checks and balances on the Director’s conduct and to hold him accountable to shareholders. There are no mechanisms in a formal document to displace the Director for misconduct. What can the shareholder do against the director?

Shareholder v Director

As a shareholder, you have certain rights under the Corporations Act.  Where there is director misconduct, you may have resort to the following:

  • Statutory Derivative Actions – in the event where you suspect or have knowledge of possible skullduggery on the part of one or more of the directors, they may be willfully acting in disregard of the duties owed by a director to their company and shareholders. This may entitle you to apply to the Court to sue the directors in the company’s name.
  • Compensation – where the directors, through a breach of their duties have cause the company to experience loss, a claim for compensation may be available from the Court to address this wrong.
  • Account of Profits – where the breach if directors’ duties has caused the directors to make a gain or profit at the company or the shareholders’ expense, you may apply to the Court to strip them of the gains made in breach of their duties.
  • Disqualification – in circumstances where a director has acted in breach of their duties through quite egregious conduct, the Court may use its power to issue the directors with a ban on managing future companies for a certain time.

Shareholder v Shareholder

Where the dispute is between the shareholders themselves, the following remedies may be available:

  • Oppression Remedies – in the event you are in a dispute with either majority or minority shareholders, and that dispute is connected with unfair or oppressive behaviour, you may be able to seek a large variety of remedies including compulsory buy-outs and amendments to the constitution.
  • Winding Up – an extreme remedy in many cases, entailing the placement of the company into liquidation and selling all of its assets and ending with the company’s eventual de-registration. This remedy is sparingly used and reserved for situations where the Court believes that it is not able to operate further as in the case of deadlocks and other more drastic disputes.

Time to Gain Control

Commercial disputes are an intricate and complex area of law, especially in company law.   Experience and knowledge of your lawyer is extremely important.  Deploying effective litigation tactics can help you gain control of a losing situation.

ABOUT THE WRITER

Stephen Mintz joined Tang Law in November 2017 and was admitted at the Supreme Court of Western Australia as Barrister and Solicitor in 2018. Stephen enjoys working in environments that allow him to use all areas of legal knowledge at his disposal to assist and guide clients to develop creative, practical and effective means to achieve their aims.

Stephen has extensive experience in assisting with the provision migration advice in connection with visa applications, as well as, appealing cancelled or refused visas, including, the preparation of relevant documents and submissions for applications for merits review before the Administrative Appeals Tribunal. He has extensive experience in advising clients in the areas of Commercial Law, Criminal Law, and Civil Litigation matters before the Supreme and District Courts of Western Australia, as well as, the Federal Court of Australia.

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