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Family Law

Family Law Valuation

When finalising financial relationships following a separation, obtaining a property valuation is a critical step.

Requirements for a Valuation

  1. Current Valuation: Any valuation relied upon should be current at the time the parties are reaching an agreement on asset division. Financial orders are based on asset values at the time the orders are made, not at the time of separation.

  2. Court Evidence: If the matter proceeds to a final hearing without an agreement on asset values, the court requires evidence of the asset's worth. The valuation must be conducted by a sufficiently qualified individual to be accepted as evidence.

Engaging a Single Expert

  • Single vs. Separate Experts: Parties can choose to engage separate experts or a single valuer to prepare a joint valuation. A single expert’s valuation, when prepared for court use, must comply with the Family Law Rules.

  • Single Expert Witness: Under Paragraph 15.5 of the Family Law Rules, the court may order that evidence be provided by a single expert witness. This single expert must provide a report that meets the Family Law Rules requirements.

Need for Expert Evidence

The court considers several principles before deciding if expert evidence is necessary:

  • Significant issue in dispute

  • Necessity for resolving the case

  • Practicality and justice

  • Avoidance of unnecessary costs

  • Interests of justice

Criteria for Single Expert Evidence

  • Field of Knowledge: Issue should fall within a well-established field.

  • Range of Opinions: Generally, the Family Court prefers a single expert unless multiple opinions are needed.

After the single expert’s report is distributed, parties have 21 days to ask questions or attend a conference with the expert to clarify findings. If still unsatisfied, parties can challenge the expert’s method or seek the court’s permission to introduce another expert’s evidence.

MPV’s Expertise

MPV is well-versed in Sections 15.5.4, 15.5.5, and 15.5.6 of the Family Law Court Rules regarding expert evidence production. For matters in the Federal Circuit Court, adhering to practice note CM7 is essential. Whether instructed singularly or jointly, MPV ensures all correspondence is joint and complies with court rules, maintaining a duty to the court with utmost respect and seriousness.

Deceased Estate & Probate Estate Valuations

Probate Valuation Services

Handling a deceased estate involves a meticulous process of assessing and estimating the value of the assets before beneficiaries can inherit. One crucial component of this process is obtaining a precise property valuation to determine the fair market value of the property and other high-value assets.

Importance of Probate Valuation

Probate valuation plays a critical role in the administration of a deceased estate. It provides a clear and objective estimate of the property's worth, which is essential for:

  • Probate Process: Executors or administrators of the Will are required to obtain a Probate Valuation Report to submit to the Probate office in their State or Territory. This report is a fundamental part of the executor’s duties, helping to accurately assess the total value of all assets and determine the corresponding tax liabilities.

  • Property Settlement: Disagreements among beneficiaries, often family members, can arise during probate property settlements. An accurate valuation helps resolve disputes by providing a fair market value that can be used to ensure equitable distribution of assets.

  • Prevention of Opportunism: Properties in a deceased estate are vulnerable to opportunistic actions during the grieving period. A timely and accurate valuation protects the estate from undervaluation or exploitation.

  • Backdated Valuations: For those who believe an injustice has occurred, probate valuations can be backdated to the ‘date of death’ to reflect the true market value at that time.

Process and Requirements

  1. Grant of Probate: The executor of the Will typically obtains a ‘Grant of Probate’ and then has the title amended at the Land Registry. This update transfers the property title from the deceased person’s name to that of the Executor, officially recognizing their authority.

  2. Valuation Report: A Probate Valuation Report helps establish the fair market value of the deceased estate, which is essential for accurately determining the tax liabilities and facilitating the distribution of assets to beneficiaries.

  3. Stamp Duty and Superannuation: An independent Property Valuation Report is also required by the Office of State Revenue to confirm the stamp duty payable on sales between related parties or when gifting the property. Additionally, superannuation funds require valuations of properties within the fund to accurately report the fund's value. Frequency of these valuations may vary, with some funds requiring them annually or every three years.

Our Expertise

At Marchese Property Valuations, we provide comprehensive probate valuation services completed by registered valuers accredited with the Australian Valuers Institute. Our reports ensure accuracy and reliability, helping executors navigate the probate process smoothly and fairly. Our expert valuations support the accurate assessment of assets, resolution of disputes, and compliance with legal and tax requirements.

For more information or to request a probate valuation, please contact us at info@marchesepropertyvaluations.com.au.

Key Steps in Handling a Deceased Estate

Key Steps and Requirements in Handling a Deceased Estate

Handling a deceased estate involves several crucial legal and procedural steps to ensure the smooth transfer of assets and compliance with relevant laws. Below is an overview of the key steps and requirements:

  1. Obtaining a Grant of Probate

    The executor of the estate must apply for and obtain a Grant of Probate from the court. This legal document officially recognizes the executor’s authority to manage the deceased’s estate. It is essential for proving that the executor has the legal right to deal with the estate’s assets, ensuring that the estate is administered according to the deceased’s wishes and legal requirements.

  2. Updating the Property Title

    Once Probate is granted, the title of any real property must be updated at the Land Registry. This process involves amending the property title from the deceased person’s name to that of the executor. This update reflects the grant of Probate and ensures that the executor is recognized as the legal owner of the property for all administrative and transfer purposes.

  3. Probate Property Valuation Report

    An independent valuation of the property is required to determine its fair market value as of the ‘date of death’. This valuation is crucial for:

    • Providing beneficiaries with an accurate understanding of the estate’s worth.

    • Ensuring accurate tax assessments and compliance with legal requirements.

    The Probate Property Valuation Report serves as a key document for assessing the value of the estate and for resolving any disputes among beneficiaries.

  4. Stamp Duty and Related Party Transactions

    The Office of State Revenue requires an independent Property Valuation Report to confirm the stamp duty payable on property sales between related parties or when the property is gifted. This report ensures that the correct amount of stamp duty is assessed and paid, preventing potential issues with tax authorities and ensuring compliance with legal obligations.

  5. Superannuation Fund Valuations

    If the property is held within a superannuation fund, it is necessary to conduct regular valuations to accurately report the fund’s value. The frequency of these valuations may vary depending on the superannuation fund’s specific requirements, which can be either annually or every three years. Accurate valuations are essential for proper fund management and regulatory compliance.

Life Interest Valuations

A life interest grants one party the right to live on a property until their death, after which the property passes to a third party, known as the 'remainderman/men'. Both the life tenant and the remainderman have real interests in the property, but they do not hold ownership simultaneously. The remainderman’s interest activates only upon the death of the life tenant.

Key Concepts of Life Interest

Life Tenant: The individual granted the right to use the property and derive income from it for their lifetime.

Remainderman: The party who inherits the property after the life tenant's death.

Real Interests: Both the life tenant and remainderman hold significant interests in the property, though not concurrently.

Legal Framework

In English law, life interests can exist only within trusts. Similarly, in Australia and New Zealand, while legal life interests are technically possible, they are typically structured to take effect under a trust.

Termination of Life Estates

Life estates usually end when the life tenant dies. However, they can also terminate under specific conditions such as:

  • Divorce involving life interest holders

  • The life tenant needing to 'sell' for health or other reasons

  • A beneficiary wanting to apportion the current value of the life interest immediately

Valuation of Life Interest

Life interest valuations are crucial for various reasons, including financial accounting and calculating stamp duty. The valuation aims to be fair to all parties and is based on a model that considers:

  • Asset Yield: The net income generated by the asset after deducting maintenance and management costs.

  • Life Expectancy: The expected number of years the life tenant, assuming typical health for their age group, is projected to live.

Calculating Life Interest Valuation

To ensure fairness, the life interest valuation takes into account the asset's net yield and the life tenant's expected lifespan. This model provides a balanced approach, ensuring that both the life tenant and remainderman's interests are adequately considered.

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