How is Eckermann Lawyers different from the big law firms in Adelaide?
Eckermann Lawyers has a wealth of experience and expertise in all aspects of commercial law, property law and all types of property transactions. What you’ll find different at Eckermann Lawyers is our commitment to a personalized and very much bespoke service. Large or small, every client at Eckermann Lawyers is treated with the same high level of personalised service that only a boutique legal firm can provide.
- Our team has a depth of property law knowledge that ensures timely and informed practical advice, whether you consider acquiring a large rural estate, leasing retail premises in a shopping centre or selling off-the-plan apartments in a mixed-use development.
- When dealing with Eckermann Lawyers, you are not only being helped by some of the best lawyers in Adelaide, but you have the added convenience, should you choose to do so, of working with our other Eckermann Group members, including Adelaide’s leading conveyancing firm, Eckermann Conveyancers.
- Eckermann Lawyers complements the existing Eckermanns businesses including Eckermann Conveyancers and Eckermann Property Forms. Established in 1976, Eckermanns have earned a reputation as a leader in their industry providing first-class service.
If a personalised, timely and informed legal service is what you are looking for, please contact us to understand how we can assist you.
What is conveyancing?
Conveyancing is the legal process of transferring the ownership (the rights, title and interest) of Real Estate Property from one legal entity to another. A conveyancer is required for both sides of a real estate transaction – buying and selling
At Eckermanns, we have the knowledge, systems and expertise that you’ll need as you prepare for the official transfer of your new place into your own name. We deal with Residential, Commercial, Leasing, Subdivisions, Family transfers, Deceased Estates and more. We keep you updated throughout the journey from the start until finish, liaising with all parties to ensure that everything happens as planned.
What is a Form 1?
In South Australia, it is a legal requirement (under Section 7 of the Land and Business (Sale and Conveyancing) Act 1994) when selling a property to disclose certain particulars relating to the purchaser’s land. This disclosure is called a Vendor’s Statement or Form 1.
Serving a Form 1 to a purchaser will activate the two clear business day cooling-off period when it is possible for purchaser to change their mind and “cool-off” on the contract in writing.
When buying at auction where there is no cooling off period. The Form 1 is required to be available for viewing for at least three working days prior to the day of the auction at the office of the real estate agency conducting the sale. The Form 1 must also be on display for 30 minutes prior to the start of the auction. It is a lengthy document and we recommend you ask your conveyancer to review the Form 1 for you.
What are the areas of specialisation at Eckermann Lawyers?
Eckermann Lawyers is an Adelaide-based boutique law firm renowned for providing service excellence across practice areas including:
• General Commercial
• Commerical Property
• Agribusiness
• Estate planning including, Wills, Advance Care Directives, Powers of Attorney, Contested Wills & Estate Disputes
• Hospitality & Licensing
• Franchising
Can I do my own conveyancing?
Property sale transactions of any kind are a minefield of legal documents and paperwork which can be complex, time-consuming, and sometimes overwhelming – this isn’t something you do every day so we wouldn’t recommend doing it yourself.
At Eckermanns we strive to provide the best conveyancing services to our clients regardless of which side of the transaction they are on. We do it every day of the working week. You can be assured that we will walk you through each step with a full and clear explanation and make this as stress-free an experience as possible.
I have signed and contract to buy a house and I’ve been sent a Form 1. What do I do next?
You should have your Form 1 examined by a Registered Conveyancer. Upon receipt of the Form 1 and following the signing of the private contracts, your two-day cooling off period begins. It is important that the Form 1 is reviewed to ensure that there is nothing within the legal information provided that will cause you concern as the purchaser. And if there is, you need to understand the implications.
If you appoint Eckermann Conveyancers to conduct your conveyancing, we will review your Contract of Sale and Form 1 for you at no charge. Remember to get in touch as soon as you have both documents in hand because it’s then that the clock starts ticking.
I want to subdivide my property. Can Eckermann Conveyancers help me?
If you’re looking to develop a property by subdividing, it’s important to understand the implications of different types of subdivisions so that you can make an informed decision for your site.
Whether you’re a developer, investor or a homeowner, our specialist Land and Community Division team is experienced in undertaking complex divisional-related conveyancing work in Adelaide and throughout South Australia, including land, community and community strata divisions, amalgamations, and easement transactions and will work closely with you through the entire division process to ensure you plan appropriately and navigate any potential issues effectively.
What is a Form 3 and can Eckermanns prepare a Form 3 for me?
Once you have signed a contract to purchase a property, you will be served a Form 1 or Vendor Disclosure statement. This document provides important legal information about your property.
The cooling-off period for your purchase expires at the end of the second clear business day after:
- the contract was made if the purchaser received the Form 1 prior to making the contract, or
- the Form 1 has been served on the purchaser if the purchaser received the Form 1 after making the contract. By law, a Form 1 must be served on a purchaser of real property in South Australia.
Sometimes a purchaser may choose to waive their cooling off rights. To do so requires the preparation of a Form 3 is required and the Form 3 must be certified by a legal practitioner. Eckermann Lawyers is experienced in the preparation of Form 3s and in explaining clearly to clients, the implications of waiving their cooling off rights.
Who uses Eckermann Property Forms?
Eckermann Property Forms was established in 2010, providing real estate agents and vendors a dedicated team of Form 1 specialists to:
- relieve the burden of Form 1 preparation and certification from agents, allowing them to concentrate on what they do best, and
- provide additional comfort to vendors safe in the knowledge that specialist subject matter experts are preparing this important documentation on their behalf. Given the serious consequences of defective Form 1s this is extremely important.
What is the Eckermann Forms Portal?
Eckermanns Form 1 Portal is an online platform developed by the Eckermann Property Forms team to provide partner agents with an easy way to manage their Form 1 requests at Eckermanns. Not only do you get the I’s dotted and T’s crossed, you know that once you have requested the preparation of your Form1 via the portal that there is an expert team of specialists behind the scenes making sure that the Form 1 process is completed as soon as possible.
With the Eckermann Forms Portal, you can complete the Vendor’s Questionnaire directly with the Vendor, have them sign page 3 and then serve Form 1 on the Purchaser via email by just hitting a submit button.
Is it better to use a conveyancer or a solicitor for conveyancing?
Both conveyancers and solicitors can provide assistance with conveyancing, and the choice of which to use will depend on your individual needs and preferences.
Conveyancers are licensed professionals who specialize in property settlement and are specifically trained in the conveyancing process. They typically offer a more specialized and cost-effective service for property transactions. Conveyancers are often able to provide faster and more streamlined services, as they focus solely on property transactions and do not handle other legal matters.
Solicitors, on the other hand, are lawyers who are qualified to provide legal advice on a wide range of legal matters, that may include property transactions. They can provide more comprehensive legal services, including advice on complex legal issues that may arise during a property transaction. Solicitors may be better equipped to handle more complex property transactions, such as commercial property transactions or properties with unique legal issues.
Overall, the choice between a conveyancer and a solicitor will depend on your individual circumstances and the complexity of your property transaction. If you are buying or selling a straightforward residential property, a conveyancer may be the most appropriate choice. However, if you have more complex legal issues or are dealing with a commercial property transaction, you may benefit from the additional expertise and services provided by a solicitor. Using Eckermanns provides you with the best of both worlds – conveyancers with the backup of a specialist law firm.
Can I buy or sell a house without a conveyancer?
In most cases, it is possible to buy or sell a house without a conveyancer, but it is not recommended. Conveyancing is a complex legal process that involves a variety of legal and financial considerations and attempting to navigate the settlement process without professional assistance can be risky and potentially costly
Engaging a conveyancer is particularly important when buying or selling a property, as they can help to ensure that the transaction is legally valid and binding, and that your interests are protected. They can also provide advice on any potential financial or legal issues that may arise during the transaction and help to resolve these issues before they become a problem.
In addition to their professional expertise, conveyancers also have access to a range of resources and tools, such as property searches and legal documents, that are essential to completing a property transaction.
Overall, while it is possible to buy or sell a house without a conveyancer, it is not recommended. Engaging a conveyancer can help to ensure that the transaction is completed smoothly and efficiently and can provide you with peace of mind knowing that your interests are protected throughout the process.
How long does the conveyancing process take?
The length of the conveyancing process in South Australia can vary depending on a variety of factors, including the complexity of the transaction, the efficiency of the conveyancers involved, and any potential legal or financial issues that may arise during the process.
Typically, the conveyancing process can take anywhere from 6-12 weeks to complete. This timeframe includes the time required for searches and checks to be conducted on the property, the preparation of legal documents, and the exchange of funds between the prospective home buyer and seller.
However, the process can sometimes take longer if there are any unexpected legal or financial issues that arise, such as disputes over property boundaries or outstanding debts on the property. In these cases, the conveyancers may need to take additional time to resolve the issues before the transaction can be completed.
Overall, it is important to allow enough time for the conveyancing process when buying or selling a property in South Australia, to ensure that everything runs smoothly and to avoid any potential delays or issues. Engaging an experienced and efficient conveyancer can also help to speed up the process and ensure that the transaction is completed as quickly and efficiently as possible.
Can the vendor and the purchaser use the same conveyancer?
In most cases, it is not recommended for a vendor and purchaser to use the same conveyancer, as this can create a potential conflict of interest. A conveyancer’s primary responsibility is to their client, and they are required to act in their client’s best interests at all times. If a conveyancer is representing both the vendor and the purchaser, they may not be able to provide impartial advice to both parties.
However, in some situations, such as a family transfer or where both parties are known to each other and agree to the arrangement, it may be possible for a vendor and purchaser to use the same conveyancer. In these cases, the conveyancer must disclose the potential conflict of interest to both parties and obtain their informed consent.
So, while it is possible for a vendor and purchaser to use the same conveyancer in certain situations, it is generally not recommended. Engaging separate conveyancers ensures that each party has an advocate who is acting solely in their best interests and can provide impartial advice throughout the transaction.
What is e-conveyancing?
E-conveyancing is the process of conducting property conveyancing transactions electronically. It involves the use of digital technology to transfer documents including the property title and other legal documents between parties involved in a property sale or purchase. At the moment the main platform providers operating in Australia are PEXA and Sympli.
The main aim of e-conveyancing is to simplify and streamline the process of property conveyancing work by reducing the need for manual paperwork and increasing the efficiency of communication between parties. E-conveyancing platforms enable real-time access to relevant property information, including land titles, mortgage details, and other legal documents.
E-conveyancing is currently being implemented in several countries around the world, not just Australia. It is used also in New Zealand, and Singapore. It offers several benefits, including faster processing times, reduced errors and costs, improved security, and increased transparency in property transactions. E-conveyancing was mandated in South Australia in August 2020, driven largely by the global pandemic which saw the closure of face to face settlement operations.
What to Check at Pre settlement Inspection: A Quick Checklist
If you are purchasing a property in South Australia for the first time and you have purchased a property interstate beforehand, you may be familiar with the concept of a pre settlement inspection. This usually occurs a few days before settlement and is a chance for the purchaser to confirm that the condition of the property they are about to settle upon is as it was inspected and with the same inclusions contained in the Contract of sale.
The pre settlement inspection gives the purchaser the opportunity to examine things like:
- Electricals – checking the doorbell, fans, light fittings, exhaust fans, heating units and air conditioning
- Appliances – making sure they are all operational e.g., dishwasher, oven, rangehood, cooktop
- Garden – making sure that the property has been maintained between contract and settlement
- Fixtures – turn on every tap and make sure they work for both hot and cold water, check the toilets and ensure they flush properly, check the washing machine taps
- Curtains and blinds – making sure that if they were included in the contract of sale, they are still at the property
- Doors and windows – checking that keys and locks work properly
- Check that rubbish bins are present and that they are in good condition
- Checking that the hot water system, gas meter, pool pump, smoke detectors and pool pumps are operational
As we said, while pre-settlement inspections are common in some states they are not in South Australia. If you specifically require a pre-settlement inspection, this can be considered for inclusion as a special condition when you sign the Contract of Sale.
How Expensive Is Estate Planning?
The cost of estate planning varies depending on the complexity of your estate and the specific services you require. Basic estate planning documents, such as a simple Will, can be relatively inexpensive, while more complex arrangements, like creating multiple trusts, will be more costly.
What Documents Do I Need as Part of My Estate Planning?
Essential documents include a Will, Power of Attorney, Advance Care Directive and Binding Death Benefit Nominations.
Is Estate Planning Only for the Wealthy?
No, estate planning is important for individuals of all income levels. It ensures that your assets are distributed according to your wishes, by the right people for the right people, and can help avoid legal complications and expenses for your loved ones.
When does a Testamentary Trust start?
A testamentary trust starts after the death of the testator and is created as part of the probate and administration process.
Can a trustee be a beneficiary of a Testamentary Trust?
The beneficiary is usually the trustee of their own trust, but a third party can be appointed in place of or as a joint trustee if necessary.
When does a Testamentary Trust end?
The ending of a Testamentary Trust depends on the terms of the Will that creates the trust. A testamentary trust can end at a specified time outlined in the trust document, such as when a beneficiary reaches a certain age or after a set number of years, or when a Trustee decides to end the trust. Again, it depends!
What assets are distributed into a Testamentary Trust?
Any assets specified in the Will can be distributed into a testamentary trust. This can include real estate, investments, cash, and personal property.
Who pays tax on a testamentary trust?
The trust itself may be subject to taxes, and beneficiaries may also be responsible for paying taxes on the income they receive from the trust.
What are the disadvantages of a Testamentary Trust?
Disadvantages can include the cost of setting up and managing the trust, potential delays due to the probate process, and the need for ongoing oversight by a trustee.
How long can a testamentary trust last?
The duration of a testamentary trust depends on the terms set out in the Will. It can last for a few years, until beneficiaries reach a certain age, or continue for multiple generations.
What are the costs associated with estate planning?
Costs can include estate planning lawyers’ fees, and costs for creating and maintaining trusts. Some financial institutions may also charge fees for managing trust assets.
On what grounds can you dispute a Will?
A Will can be contested on several grounds, including lack of testamentary capacity, undue influence, fraud, improper execution, and lack of provision for eligible claimants.
How much does it cost to contest a Will?
The cost varies depending on the complexity of the case, the need for expert witnesses, and the length of court proceedings. It is essential to discuss potential costs with your lawyer upfront.
Who pays the legal costs to challenge, contest, or dispute a Will?
It is often the case that legal costs are paid from the estate or from the parties’ respective shares of the estate if the parties reach a resolution or if a claim is successful. However, if a challenge is unsuccessful or withdrawn, the individual contesting the will may be responsible for their own legal costs and potentially those of the estate and other parties.
How long does it take to contest a Will?
The duration can vary significantly, from a few months to several years, depending on the case’s complexity and whether it goes to court.
What happens when someone dies without a will? Can you contest an intestate estate?
When someone dies without a will, they are considered intestate, and their estate is distributed according to statutory rules. While you cannot contest the distribution rules themselves, you can make a claim if you believe you have not been adequately provided for under these rules.
What if I want to make an inheritance claim after the grant of probate? Can you contest a Will after probate?
An inheritance claim can be made within 6 months after the grant of probate in South Australia, but it is important to seek legal advice as soon as possible and attempt negotiations well prior to this deadline if possible.
If you need assistance or more information on contesting a will or estate dispute resolution, reach out to our expert team of Will dispute lawyers today. We’re here to help guide you through every step of the process.
Why make an Enduring Power of Attorney?
An Enduring Power of Attorney ensures your financial and legal matters are handled according to your wishes, even if you lose mental capacity. It provides long-term protection and peace of mind, knowing your interests are safeguarded.
What happens if I don’t make an Enduring Power of Attorney?
Without an Enduring Power of Attorney, your loved ones may need to seek legal guardianship to manage your affairs, a process that can be time-consuming, costly, and stressful. It may also result in decisions that do not align with your preferences.
Are there any risks involved with making an Enduring Power of Attorney?
While an Enduring Power of Attorney offers many benefits, there are risks if the appointed attorney mismanages your affairs or acts against your wishes. It’s crucial to choose a trustworthy and responsible person and to clearly outline the scope of their powers.
Can I appoint the Public Trustee as my attorney?
Yes, you can appoint the Public Trustee as your attorney. This can be a good option if you do not have a suitable person to appoint or if you prefer a professional to handle your affairs. The Public Trustee acts impartially and follows your instructions diligently.
What does it cost to make an Enduring Power of Attorney?
The cost of making an Enduring Power of Attorney can vary depending on the complexity of your situation and the fees charged by your lawyer. It’s best to consult with our team to get a detailed estimate tailored to your needs.
Fees for acting under an Enduring Power of Attorney
Attorneys can claim reimbursement for reasonable expenses incurred while performing their duties. If the Public Trustee is appointed, they charge fees based on the services provided, which are outlined clearly in their fee schedule.
I need help making an Enduring Power of Attorney
Our experienced lawyers are here to help. We offer personalized consultations to guide you through every step of the process, ensuring your Enduring Power of Attorney is tailored to your specific needs and provides the protection you deserve. Contact us today to get started.
When is an advance care directive used?
An ACD is used when you are unable to make or communicate decisions about your health care, lifestyle, or personal matters due to illness or incapacity.
Identifying the medical treatment decision-maker
The appointed Substitute Decision-Maker in your Advance Care Directive will be your medical treatment decision-maker, responsible for making decisions based on your outlined preferences.
How to make an advance care directive?
Creating an Advance Care Directive in South Australia involves several steps:
- Consider Your Preferences: Reflect on your values, health care preferences, and personal matters. Think about the type of medical treatments you would or would not want, and any specific instructions related to your care.
- Appoint Substitute Decision-Makers: Choose one or more individuals who will act on your behalf if you cannot make decisions. Ensure they understand and will respect your wishes.
- Complete the Advance Care Directive Form: Obtain the official Advance Care Directive form, which can be downloaded from the South Australian Government website. Fill out the form with your details, preferences, and the appointed Substitute Decision-Makers.
- Witness and Sign: The Advance Care Directive must be signed in the presence of an authorised witness, such as a justice of the peace, a lawyer, or a registered health professional. The witness must not be a Substitute Decision-Maker or a beneficiary of your estate.
- Distribute Copies: Share copies of your Advance Care Directive with your Substitute Decision-Makers, healthcare providers, and loved ones. Keep the original in a safe but accessible place.
Who can witness an Advance Care Directive?
An Advance Care Directive (ACD) must be witnessed by an authorised individual such as a justice of the peace, lawyer, or registered health professional. The witness cannot be a SDM or a beneficiary of your estate.
How to change your Advance Care Directive?
To change your Advance Care Directive (ACD), you must complete a new Advance Care Directive (ACD) form and have it witnessed. Ensure all relevant parties are informed of the updated document.
Can an Advance Care Directive be overridden?
In certain circumstances, an Advance Care Directive (ACD) can be overridden by legal or medical authorities if the specified wishes are not in the best interest of the individual or if there are concerns about the validity of the document.
Should an advance care plan be updated?
Yes, it’s important to review and update your ACD regularly, especially after significant life events or changes in your health status.
Can an ACD be used to demand specific health care be provided?
An ACD cannot demand specific treatments be provided but can express your preferences, which must be considered by healthcare providers in conjunction with medical advice and legal guidelines.
How much does it cost for a Will in South Australia?
The cost of a Will in South Australia can vary depending on the complexity of your estate and the services required. Basic Wills may start from a few hundred dollars, while more complex arrangements may be higher.
The cost of making a Will with a lawyer will also vary depending on the complexity of your family situation, your assets and liabilities and how they are structured, and what you want to happen after your death.
Attorneys that do Wills in movies often allow their clients to include wild ideas and conditions that must be met before an inheritance is given to a beneficiary, such as a requirement that a beneficiary be married. In reality, getting creative with your Will would be very expensive to draft, and even more expensive when it comes to administering your estate, particularly if your beneficiaries dispute the Will.
Who can make a Will in South Australia?
Anyone over the age of 18 and of sound mind can make a will in South Australia. Exceptions may apply for minors in certain circumstances, such as if they are married.
What happens if I die without a Will in South Australia?
If you die without a Will, your estate will be distributed according to the intestacy laws of South Australia. This may result in your assets being distributed in a way that you did not intend.
Can I write my own Will, or do I need a lawyer?
While it is possible to write your own Will, using a lawyer ensures that your Will is legally valid and comprehensive, reducing the risk of challenges and ensuring your wishes are clearly communicated.
What should I include in my Will?
Your Will should include instructions for the distribution of your assets, the appointment of executors to deal with your estate, guardianship of minor children, and any specific funeral arrangements or trusts you wish to establish.
Can I change or revoke my Will?
Yes, you can change or revoke your Will at any time, as long as you are of sound mind. It is important to review and update your Will regularly to reflect changes in your circumstances.
What role does an executor play in executing a Will?
An executor is responsible for managing your estate, paying any debts and taxes, and distributing your assets according to your Will. Your executor is not required to take part in preparing your Will though if you choose to appoint a company as your executor, that company may assist you to prepare it. Choosing a trustworthy and capable executor is crucial.
How can I ensure that my Will is legally valid in South Australia?
To ensure your Will is legally valid, it must be in writing, signed by you and witnessed by two people who are not beneficiaries. Consulting a lawyer can help ensure all legal requirements are met.
Is it necessary to advertise a Grant of Probate?
In many jurisdictions, it is necessary to advertise a Grant of Probate. This advertisement serves as a public notice to creditors and other interested parties, allowing them to come forward with any claims against the estate before it is distributed. The advertisement typically needs to be placed in a local newspaper or an official government publication.
Who can apply for Probate of a Will?
The executor named in the Will is typically the one who applies for probate. If the named executor is unable or unwilling to act, or if there is no Will, an eligible person, such as a close relative, can apply to the court to be appointed as the administrator of the estate.
Can I contest a Will after Probate has been granted?
Yes, it is possible to contest a will after probate has been granted, but it can be more challenging. Grounds for contesting a Will include concerns about the validity of the Will, such as allegations of undue influence, lack of testamentary capacity, or improper execution. Legal advice should be sought promptly if you wish to contest a Will.
When is probate required?
Probate is required when the deceased owns assets solely in their name or if the total value of the estate exceeds a certain threshold set by state law. It is also necessary if there are disputes among the beneficiaries or if the Will is contested.
When is probate not required?
If an estate does not contain real estate or if the estate assets are only modest in value, you may be able to deal with the estate without probate. For example, banks have their own policies as to what amounts they may release without a grant of probate. A common example of when probate is not usually required is where a deceased person held all their assets jointly with their surviving spouse.
A probate lawyer can assist you through obtaining probate for a Will and make the difficult process a lot smoother and easier in an already difficult time. The Supreme Court Probate Rules 2004 (“Probate Rules SA”) sets out the rules for making an application for probate.
How long will probate take?
The time taken for Probate in South Australia can depend on the complexity of the Will and the estate, whether all information required is readily available, and finally the time taken for the Probate Registry to process the application which may be dependent on workload.
How Much Does Probate Cost in South Australia?
The cost of probate in South Australia can vary based on several factors, including the value of the estate and the complexity of the case. Costs may include court fees, legal fees, and other administrative expenses. It is advisable to consult with an Adelaide probate lawyer to get a clearer estimate of the costs involved.
When are the Assets Distributed?
Assets are distributed after the probate process is completed, which includes validating the Will, paying off any debts and taxes, and resolving any disputes. Once these steps are completed, the executor or administrator can distribute the remaining assets to the beneficiaries according to the Will or the laws of intestacy.
