Conveyancing and Wills
This bundle includes guides from the following two publications.
Recent publication updates can be viewed on Obiter - our blog.
A complete matter management solution so that conveyancers and support staff can run a busy conveyancing practice. Each step in the transaction is set out in sequential order with all of the required precedents and commentary in the one place.
Commentary covers issues that arise regularly and the more complex issues that arise from time to time.
2. Wills, Powers of Attorney & Enduring Guardianships
This valuable and thorough publication allows the practitioner to take instructions using a comprehensive and methodical instruction sheet then prepare wills, powers of attorney and guardianship with confidence, whether for a single client or complex families and including where the clients have an extensive or complicated asset portfolio.
Precedents include various ways to deal with blended families, superannuation death benefits and rights to occupy.
Commentary includes discussion of tax treatment of superannuation, use of testamentary trusts, testator's family maintenance considerations and assets in multiple jurisdictions.
Take the worry and risk out of will drafting and maximise its value to your practice by using our excellent and easy to follow publication.
Guides in this publication
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“ Commentaries ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a practitioner charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily ... ”
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“ Nature of disclosure6 Timing of disclosure7 ”
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“ Costs disclosure is not required in relation to certain clients, described in the legislation as ‘sophisticated clients’ or ‘government or commercial clients’ as defined by the relevant legislation to include clients such as lawyers, law firms, public companies, liquidators and government entities. ... ”
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“ Cost agreements are not always required, although clearly, as between the practitioner and their client, there will be disclosure but without the need for formal compliance with the regulation. The limits are: ”
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“ In New South Wales and Victoria there is a standard costs disclosure for fees under $3,000 which is included in the precedents. If the total legal costs in a matter (excluding GST and disbursements) are not likely to exceed $3,000 (the higher threshold), a practitioner may, instead of making a ... ”
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“ Knowing that clients are disinclined to read, sign and return cost agreements, the letter sending them usually provides that unless heard to the contrary the practitioner will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many ... ”
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“ Costs are remuneration for professional work when acting in the capacity of a barrister or solicitor. Payments to a practitioner for work which is not professional work, are not costs. Disbursements are payments made, or liabilities incurred in the course of practice and which the practitioner is ... ”
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“ Practitioners are required to provide an estimate of the total of costs, excluding GST and disbursements, and information on the impact of any significant change to these costs. A practitioner must take all reasonable steps to satisfy itself that the client has understood and consented to the ... ”
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“ What is a disbursement Disbursements are payments made, or liabilities incurred in the course of practice, and which the practitioner is bound to pay whether put in funds by the client or not; or payments which, by established custom and practice of the profession, the practitioner is bound to pay. ... ”
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“ A practitioner may request money on account of fees be paid into a trust account before the work begins. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. Experience confirms that if a client is reluctant to pay such ... ”
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“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month, or when the WIP reaches a specified amount, whichever is the earlier. ”
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“ A lump sum invoice is one which sets out a recital describing the legal service provided and a total amount. An itemised invoice is one which sets out in detail each of the legal services provided, the date they were provided, and the cost for each service. An itemised invoice allows for an invoice ... ”
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“ A practitioner cannot charge for the time spent in preparing an invoice. A practitioner cannot charge for the time spent in preparing an itemised invoice for a client who has already received a lump sum invoice. ”
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“ All bills should be accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute and any time limits that apply to the taking of such action. Under the uniform law in New South Wales and Victoria each bill or covering letter must be signed by a ... ”
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“ – When to charge and how to charge Goods and Services Tax (GST) is a broad-based tax of 10% applied to most goods and services, including legal services. Businesses are required to register for GST if their turnover exceeds the $75,000 threshold. If turnover is less than $75,000, registration is ... ”
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“ Reducing fees can create goodwill but needs to be handled with care as some clients may take offence to the implication that they cannot afford to pay for the work they have retained. Similarly, it may create an expectation that any future costs will be discounted. It is also a hard-won reality ... ”
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“ Credit terms are quite common and need to be clearly documented and administered. ”
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“ Notification of rights is a requirement in all states and is found in all example invoice precedents. If the client has not been advised of their rights in a costs agreement, practitioners must advise the client of their rights at the time of issuing the invoice. ”
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“ Monthly accounting for work in progress is recommended in order to achieve target lockup days. If debtors are not followed up promptly cash flow reduces making it imperative to adopt a debtor’s policy for effective debtor control. All overdue accounts must be followed up promptly and repeatedly. ”
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“ When a retainer is terminated before completion, a practitioner may claim costs for the work done to the date of termination on a quantum meruit basis if: The client terminates the entire retainer; ”
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“ When there are costs owing to the practitioner from the client, the lawyer may retain possession of the client’s documents which are legitimately in the practitioner’s possession. However, the Australian Solicitors’ Rules specify that when a practitioner claims to exercise a lien for unpaid legal ... ”
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“ If a practitioner has an equitable charge over the client’s property incorporated into the costs agreement, ordinarily the practitioner could exercise that power in seeking payment of costs. However, general charges such as a charge over ‘all my estate, rights, title and interest in and to any real ... ”
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“ Sound financial management is absolutely critical to the success of a law practice. There is a high correlation between practices with poor financial management and increased probability of experiencing professional negligence claims. The link is clear. Principals, who do not manage their ... ”
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“ Methods of payment include: Credit card; ”
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“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”
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“ Lawcover recommends that practitioners use the costs assessment scheme to recover costs. Instituting proceedings against a disgruntled client who refuses to pay an outstanding bill exposes practitioners to the risk of a cross-claim in negligence being filed. The advantage of the cost assessment ... ”
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“ The following outline of costs assessment was written for NSW but the procedure is similar in the other states. This publication will be expanded to cover cost assessment in the other states in due course. In the interim refer to the relevant State Supreme Court. NSW Procedure ”
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“ A client may be entitled to complain to the Legal Services Commissioner about a costs dispute. If the complaint is made after the law practice or client has already applied for assessment of such costs, the assessment will ordinarily be stayed until the complaint has been determined. Similarly, if ... ”
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“ Department of Primary Industries, Parks, Water and Environment Crown Land Services ”
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“ Sale of Real Property (TAS) Companies, Trusts, Partnerships and Superannuation ”
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“ The purpose of a conveyancing transaction is to transfer the title and use of real property from one party to another. ”
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“ The agent or the client has advised you that a purchase has been negotiated and that details will follow. The majority of the purchase contracts in Tasmania are drawn by agents so the typical file starts with the agent sending a copy of the signed contract. ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ It is common for one person to want to appoint another person to be his or her representative for the purpose of undertaking some activity on his or her behalf. The law has always recognised this arrangement, which at its simplest is governed by the law of agency. The need for the person acting on ... ”
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“ The foreign resident capital gains withholding payments provisions of the Taxation Administration Act 1953 provide that when a property is sold with a market value of $750,000 or more the purchaser is required to withhold 12.5% of the purchase price. The sum withheld must be remitted to the ... ”
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“ The requirement for purchasers to withhold the GST and remit it to the commissioner on taxable supplies of certain real property under subdivision 14-E Schedule 1 of the Taxation Administration Act 1953 came into force on 1 July 2018. Subdivision 14-E applies to all contracts that settle after 1 ... ”
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“ The Law Society and Real Estate Institute standard form contract is ubiquitous and is designed to obviate the need for any alterations and additions. It is shorter simpler and clearer than most mainland equivalents. The Law Society and the Real Estate Institute are committed to clarity and ease of ... ”
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“ The central issues of identity of the purchaser are those relating to tax, tenancy and asset protection. ”
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“ Title The property will either have a Torrens, old system, qualified, strata, crown or leasehold title and will be registered or the subject of a proposed subdivision. ”
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“ It must be unambiguous whether or not GST is payable by the purchaser and whether or not it is included in the price. If substantial inclusions are involved then an apportionment of the price may be necessary for tax purposes. Stamp duty is payable on the price inclusive of GST whichever way it is ... ”
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“ The Competition and Consumer Act 2010 and Australian Consumer Law (Tasmania) Act 2010 prohibit misleading and deceptive conduct and unconscionable conduct and are relevant to vendor disclosure. Incorrect information given in the course of trade or commerce may be misleading and deceptive conduct. ”
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“ The law of contract gives limited rights to a victim of pre contract misrepresentation. Generally misrepresentation involves a false statement of fact that induces the other party to enter the contract. If a pre-contractual representation becomes a term of the contract and then is found to be ... ”
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“ Usually houses are sold on the basis that ownership is guaranteed but the condition of the property is not necessarily guaranteed. Usually houses are sold on an as is where is basis. If you buy a house unless there is some special provision there is no right under the contract to deliver up the ... ”
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“ Prior to exchange you will need to be satisfied that the purchaser has loan approval and is satisfied with the result of the building, strata or other reports. If the client is proceeding to exchange without loan approval then ensure you have the appropriate note of those instructions on the ... ”
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