Legal Questions you didn't know you needed to ask.

"What's a Probate?"


When you die there needs to be some kind of process to recognise that there is a person authorised to deal with your property. Without this, anyone could claim that they are responsible and could simply take the deceased's property.


If a person dies after having made a Will, the process to declare who is properly responsible is called Probate - a Supreme Court order that a person is the authorised executor of the estate. Once Probate is issued by the Supreme Court, that person can then deal with the estate and distribute it as set out in the Will.


The process of obtaining Probate is a technical one, but a very common one dealt with by law firms and law clerks.


If a person dies without a Will, there is a similar process called Letters of Administration, so that the next of kin (or suitable other person or organisation) have the same authority to deal with the estate.



"What is legal aid?"


Each state in Australia operates a Legal Aid Commission, a statutory body that provides funding for legal services for people who could not afford it otherwise, as well as community education and outreach.


This comes in two main forms:


a. In-house lawyers to help people with their criminal, family law, family violence and child protection matters; and,


b. Providing funding to law firms (private lawyers) so that they can assist people who could not afford lawyers otherwise.


To apply for legal aid funding you need to apply through your lawyer - whether at the Commission, or a law firm - and they will file the documents for you. Be aware that there are often limitations on what can, and cannot, be funded, or the actions that your lawyer will be paid to do.



"What's the difference between DUI and Exceeding .05?"


A lot of people copy American language and described any drink-driving offence as "DUI". However, the two are quite different in all Australian states.


Exceeding .05 is the most common drink-driving charge, and is simply based around whether someone was driving and had a breath (or blood) alcohol content above the set level. Penalties have been set by parliament at bare minimums, such as at least 3 months disqualification for a first offence.


DUI is very different - it is where a person was so intoxicated that they could not properly control their vehicle (and so, was a risk to the public). Examples are where they were so drunk that they could not properly control the pedals or wheel, or couldn't stand up without staggering once they exited. Penalties for this are far more severe, and are more likely to involve jail sentences.



"I want to get divorced - how do I do it?"


In Australia, it is surprisingly easy to get divorced: there is a do-it-yourself kit to prevent you needing to spend money on lawyers, available from the Federal Circuit Court of Australia. It can be located here. The court fees are expensive - nearly $1000 - but fee reductions are available if you are low-income or receiving government benefits.


Be aware that there are still basic requirements: you have to have been married at least 2 years, separated for at least 12 months, the marriage is broken down and is not retrievable, and that there are suitable arrangements in place for any children of the relationship.


Keep in mind that, unlike other countries, divorce is separate from things like property settlement, spousal maintenance or parenting arrangements. Getting a divorce here does not automatically start these processes. Divorce in Australia is simply about ending your classification as "married". If you have any questions about these other areas, you should seek legal advice from a lawyer.


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