FREQUENTLY ASKED QUESTIONS
Your Legal Questions, Answered
These FAQs cover the legal questions we’re asked most often, including topics like Wills, conveyancing, estate planning and general legal advice. They might just answer what’s on your mind too. If you don’t see what you’re looking for, feel free to reach out to our team of lawyers for help.
Conveyancing & Property
-
You have spent several weeks assessing the marketplace and finally find the right property, in a price range you can afford. Once your offer has been accepted the next step is exchange of contracts to move forward.
Step 1 – ENGAGE YOUR LAWYER/CONVEYANCER:
Advise the agent the name and details of your Lawyer/Conveyancer. The agent will normally arrange for the vendor or the vendor’s Lawyer/Conveyancer to send the counterpart contract (the duplicate copy of the contract to be signed by the purchaser) to your Lawyer/Conveyancer, unless the vendor requires an immediate, unconditional exchange (where the vendor requires an unconditional exchange, the contract is exchanged unconditionally and dated on the day the offer is accepted- both vendor and purchaser are then ‘locked in’). SEE ALSO AUCTION below.
The most common way forward is a conditional exchange. In that case you will need to sign the contract held by the agent, subject to a “cooling off” period – that is, a statutory right for you to pull out of the contract usually within 5 business days (although this can be extended with the vendor’s consent) after you sign the contract and pay a partial deposit of 0.25% of the agreed sale price to be held in trust by the agent. The consequence if you do withdraw during the cooling off period, is that you lose that 0.25% of the price as a payment to the vendor for giving you the grace period, during which time the vendor could not sell to anyone else.
During this “cooling off” period you investigate the property and arrange your finance see in more detail (see Steps 3 & 4 below). By the last day of the cooling off period if you decide to go ahead with your purchase you must pay the rest of the deposit.
Step 2 – THE DEPOSIT:
The statutory amount for a deposit is 10% of the purchase price. Remember there is no binding agreement until formal written contracts are signed by both parties and the contracts are ‘exchanged’ and dated. Agreements dealing with real property must, by law, be in writing containing sufficient information to clearly identify the property, the parties, the main terms and conditions and the price.
Step 3 – ARRANGE YOUR FINANCE:
Initially, while you are looking for a property, you’ll need to have an idea of how much you can borrow. Contract a broker or your bank who will guide through the process of obtaining pre-approval. Once you have are ready to exchange contracts (either unconditionally or conditionally) you will obtain formal loan approval, in writing, so that you can safely know you have the finance to proceed.
Step 4 – ARRANGE INSPECTIONS/ENQUIRIES OF COUNCIL ETC:
The vendor and the agent are under no legal obligation to advise you as to any physical or title defects the property may have, subject to certain disclosures required to be made in the contract, by law. There will be additional special conditions in the contract that change the rights of the vendor or purchaser. These changes are often negotiable but MUST be agreed before the contract is unconditional.
So, when it comes to the physical aspects of the property you should carry out all inspections and be fully satisfied that what you are buying is not structurally defective or termite infested. It is also usually better to ensure that the building and other structures comply with the building code and swimming pool laws before the contract is exchanged and becomes binding upon you.
Step 5 – SETTLEMENT:
The settlement date is usually 42 days from the date on the Contract although a later or earlier date can be negotiated at same time as the price is negotiated. Your lawyer will guide you through the steps and legal requirements in the ‘journey’ from unconditional exchange of contracts to the day of settlement. The final step is an electronic settlement on the Property Exchange Australia (PEXA) Site. A workspace is created and the lawyers, lender banks, Revenue NSW, Land Registry Services (LRS) populate the workspace. On the appointed day settlement takes place; the title changes and funds are distributed.
AUCTION:
At the fall of the hammer or negotiated after the auction but on the same day, means the contract is exchanged unconditionally and dated on the day of the auction. For this reason, it is essential that you have a Lawyer/Conveyancer review the contract to have any changes negotiated and complete Steps 2, 3 & 4 above before the auction. The unconditional exchange of contracts and payment to the agent of the 10% deposit are completed on the day of the auction. Both vendor and purchaser are ‘locked in”.
-
You have decided the time is right to sell your property. You have spent time assessing the marketplace and found the right sales agent, agreed to the prospective sale price and negotiated their commission (remember everything is negotiable with the agent before you sign the agency agreement). Once you have signed their agency sales agreement the next steps are:
Step 1 - ENGAGE YOUR LAWYER/CONVEYANCER:
As the vendor, your Lawyer will draw the Contract for Sale. The agent cannot market the property until they receive the contract.
Step 2 - THE CONTRACT:
Your Lawyer/Conveyancer will prepare the Contract and order on your behalf the contract documents which include statutory clauses, mandatory certificates, clearances and other documents and added special clauses often varying the statutory clauses. A copy of the complete contract is given to the agent for marketing and sending copies to interested parties.
Step 3 - CONTRACTS EXCHANGED:
Once you have accepted an agreed price with a purchaser, duplicate contracts are signed – one is signed by you as vendor and the other signed by the purchaser. Both contracts are dated and exchanged - the contract signed by the vendor is given to the purchaser in exchange for the signed contract of the purchaser.
The most common way forward at this initial stage is a conditional exchange. The contracts are exchanged by the agent, and subject to a 5 day “cooling off” period for the purchaser to do due diligence, including other inspections about the property and securing finance. The purchaser pays a partial deposit of $0.25% of the agreed sale price to be held in trust by the agent. During this period, you as the vendor and the agent cannot market or sell to anyone else. The consequence if the purchaser does withdraw during the cooling off period, is that $0.25% funds are released to you as compensation for ‘pausing’ the marketing of your property. By the last day of the cooling off period the purchaser must confirm they are proceeding and pay the rest of the deposit to the agent’s trust account. Both vendor and purchaser are then ‘locked in’ to the sale. The contracts are now unconditionally exchanged.
Step 4 - PREPARING TO DISCHARGE YOUR LOAN/MORTGAGE:
Now that you have a purchaser ‘locked in’, if you have a mortgage, it is time to contact your broker or the lender. You will need to sign and send a discharge of mortgage form provided by your lender.
Step 5 – SETTLEMENT:
The settlement date is usually 42 days from the date on the Contract although a later or earlier date can be negotiated at same time as the price is negotiated. This final step is an electronic settlement on the Property Exchange Australia (PEXA) site. A workspace is created and the lawyers, lender banks, Revenue NSW, Land Registry Services (LRS) populate the workspace. On the appointed day and time settlement takes place; the title changes and funds are distributed.
Wills & Estate Planning & Probate
-
A Will is the essential legal document you must make because it sets out your instructions regarding your distributions of your assets. For that reason, you should certainly make a Will once you are an adult. You should update it if you marry or divorce, or you decide to change your instructions of your present Will.
In your Will you appoint an Executor and Trustee to manage your estate, and ensure your wishes are fulfilled. You can also appoint a Guardian of your children under 16yrs of age and specify how you want your children to be cared for, including outlining financial provisions in your Will for their well-being.
-
If you die without a Will (intestate) your estate will be distributed according to the rules of intestacy. Generally, your surviving husband/wife (spouse) inherits all the assets although if you have children from an earlier marriage or relationship it is shared with those children.
In basic terms, the order of relatives who can inherit your estate if there is no spouse is:
children
parents
brothers and sisters
grandparents
aunts and uncles
cousins
Each ‘category’ must be exhausted before moving on to the next and once an eligible relative is found, the process stops.
-
Yes, you can leave instructions for the care of your children and pets in your Will. While pets are considered property under the law and cannot inherit directly, you can make specific arrangements for their care including naming a guardian in your Will and providing funds for their upkeep.
-
Probate is a legal process in New South Wales (NSW) where the Supreme Court validates a Will and confirms the executor’s authority to manage the deceased’s estate.
The documents for the Court are usually prepared by your lawyer together with other relevant paperwork. The executor named in the Will signs the Affidavit of Executor together with a certified copy of the Death Certificate and the original Will. The documents are filed in the court and a fee calculated on the gross value of the estate assets is paid. Once the Grant of Probate issues from the Court the estate assets can be realised and distributed.
Only your executor named in the Will can apply for Probate. If there is no Will or the executor named in the Will is unable to fill that role (e.g. has passed away or in poor health) then another person who has an interest in the estate (e.g. an eligible beneficiary) can apply instead. In that case, although it is a similar process to a ‘Grant of Probate’ the person applying is called ‘the Administrator’ applying for ‘Letters of Administration’.
-
Will:
Your Will is a legal document that outlines how your property and assets should be distributed after your death. It also may include guardianship of your minor children including appointing a Guardian, your wishes regarding pets and your funeral arrangements.
Power of Attorney (POA) and Enduring Power of Attorney (EPOA):
A Power of Attorney grants someone the authority to act on your behalf in financial and legal matters while you are alive. This can be important and useful e.g. if you are travelling and are difficult to be contacted by your bank or other financial entities, unwell, or simply need assistance with managing your finances.
An Enduring Power of Attorney gives the added benefit that it remains in effect even if you lose the capacity to make decisions. The ‘enduring’ clause can be incorporated in the Power of Attorney and is strongly recommended.
Enduring Guardianship:An Enduring Guardianship allows you to appoint someone to make personal, health, and lifestyle decisions for you if you become incapable of making them yourself. This includes decisions about your living arrangements, medical treatment, and other personal care matters and end of life decisions.
Power of Attorney & Enduring Guardianship
-
Your POA allows someone (the person you appoint as attorney) to make financial and legal decisions on your behalf (you are known as the principal). Your Attorney exercises these powers at your direction. If you lose the mental capacity to give directions and make decisions the POA becomes invalid and is automatically cancelled.
An EPOA is a POA document that includes a clause advising that the power will continue to be effective (endure) if, after signing the EPOA, the principal lacks capacity to give directions and decisions, through loss of mental capacity. This clause can be included in the POA without need to have a separate document. Importantly, you, as the principal MUST have capacity at the time you sign.
You can appoint more than one attorney. If so, you need to specify how you want them to make decisions: jointly (they must agree on every decision), separately (each can make decisions independently), or jointly and separately (they can act together or separately). You can also appoint a substitute or alternative attorney to act if your primary attorney(s) are unavailable or unable (in hierarchy).
KEY DECISIONS AN ATTORNEY CAN MAKE:
Financial: Managing bank accounts, paying bills, making investments, and handling other financial transactions.
Legal: Signing legal documents, buying or selling property, and dealing with legal matters related to the principal’s finances.
Attorney’s Obligations: The attorney must act honestly, carefully, and in the best interests of you, the principal. Also, they must keep accurate records of all financial transactions made on your behalf.
Revocation: You, as the principal can revoke (cancel) a power of attorney at any time, provided you have the mental capacity to do so.
ENDURING GUARDIANSHIP
For decisions about health, lifestyle, and personal care, you need to appoint an Enduring Guardian.
-
It is important that you choose someone you trust but equally important is that you appoint a person with whom you can discuss your wishes and, ideally is empathetic to, and respectful of, your choices and decision regarding health, lifestyle, personal care, and often difficult discussions/decisions e.g. around a terminal diagnosis. It is important that your Enduring Guardian is comfortable with their responsibilities.
ADVANCE CARE DIRECTIVE:
To assist with reassuring your Enduring Guardian it is wise to complete an Advance Care Directive which is a free document that can be downloaded at:
https://www.health.nsw.gov.au/patients/acp/Publications/acd-form-info-book.pdf
The Advance Care Directive explains its purpose and assists you and your Enduring Guardian to understand your wishes. You can record your specific preferences for future health care in the document. This includes treatments that you would accept or refuse if you had a life-threatening illness or injury.
-
Yes, you can appoint more than one Enduring Guardian in NSW. You need to specify how you want them to make decisions: jointly (they must agree on every decision), separately (each can make decisions independently), or jointly and separately (they can act together or separately). You can also appoint a substitute or alternative guardian to act if your primary guardian(s) are unavailable (in hierarchy).
-
Essentially, an EPOA deals with legal matters like your money and property, while an Enduring Guardian handles decisions regarding health, lifestyle, personal care, and often difficult discussions/decisions e.g. around a terminal diagnosis, when you are too ill to voice them yourself.
Business & Leasing
-
Commercial leases are complex legal documents, and a lawyer can help ensure that your rights and interests are protected. They can advise of potential risks and take instructions and represent you e.g. if you want to alter clauses and/or negotiate more favourable terms.
Your lawyer can advise on the many clauses in a Commercial lease including explaining outgoings, renewal options, explaining and negotiating rental increases, responsibility for Landlord repairs and/or tenant repairs, and assist in resolving misunderstandings between the Landlord and tenant.
Common issues in commercial leases that your lawyer can advise/resolve include:
Ensure the rent is fair and that you understand what outgoings (e.g., property taxes, insurance) you are responsible for.
Negotiate a lease term that aligns with your business needs and consider options for renewal.
Understand your obligations for restoring the premises to its original condition at the end of the lease.
Clarify who is responsible for repairs and maintenance of the premises.
Review the termination clauses to understand your rights and obligations if you need to terminate the lease early.
-
Ideally the right business has to ‘gel’ with your interests and background experience in an industry and marketplace that’s right for you. Once you have a sense that the business is right for you your attention can turn to practical ‘big picture’ considerations including location; reputation; what you can bring to the business; talk to existing customers; employees; nearby business owners.
Once you have gathered the practical aspects and information is to do your due diligence- engage your accountant and your lawyer. Your accountant will assess and advise the financial aspects, for example, financial and tax records, business activity statements (BAS); profit and loss records; cash flow statements; balance sheets; sales records and business operation culminating in an assessment of the value of the business. Your lawyer will inspect the legal documents, for example, any permits and compliance issues, contracts with suppliers, transfer of leases, intellectual property. These professionals help you identify and manage any risks associated with buying the business.
Once you have conducted due diligence you will have a sense of the value of the business and, you'll need to make a final decision about whether to make an offer to buy it. You may need to negotiate the purchase price with the seller before you reach an agreement. Having reached agreement, you can complete the legalities and payment to achieve handover and look forward running your own business.
-
Selling a business legally involves several key stages: legal due diligence, contract drafting, navigating regulatory requirements, and managing the settlement process. A well-structured sale ensures a smooth transfer of ownership while minimising legal risks.
Your lawyer can help you identify and address potential risks and liabilities and can also ensure the sale complies with all legal requirements including:
Ensure all legal documents, including ASIC extracts, contracts, leases, and financial records are accurate and current.
Identify and protect intellectual property, such as trademarks, patents, and copyrights.
Comply with the Fair Work Act 2009 (Cth) regarding employee entitlements and transfer of employment.
Specify which assets and liabilities are included in the sale, including goodwill, stock, and equipment.
Specify the sale price, payment method, and the date of settlement.
Include clauses to protect confidential information and prevent the seller from competing with the business after the sale.
Determine whether GST is applicable to the sale and if stamp duty applies to the transfer.
Comply with Competition and Consumer Act 2010 (Cth).
Transfer or cancel relevant business licenses and permits.
Ensure all agreed-upon assets are transferred to the buyer.
Appointments, Pricing & General Questions
-
Please contact our team directly and will be happy to discuss pricing.
-
Yes: For your Will, Power of Attorney (POA) & Enduring Power of Attorney (EPOA) and Enduring Guardianship (EG’SHIP) including attending your appointees accepting their appointments in POA, EPOA & EG’SHIP documents and providing your appointees with certified copies
-
We are always happy to make home visits.
We also offer appointments via video calls over Zoom or Facetime or Microsoft Teams.
-
Yes we can.
HOW WE CAN HELP
Our Services
Found the answer you were looking for? Our full range of legal services includes Wills, Powers of Attorney, Conveyancing and more. Let’s see how we can help with what’s next.
Talk to a Lawyer
Get in touch with our team to see how we can assist with your personal, property or business legal needs in Sydney. We’re here to make the process clear and straightforward.