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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

Unless they are privately funded, all charities and not-for-profits need to undertake fundraising to raise the funds needed to fulfill their charitable purpose and mission.

A common question we often hear when advising charities is “do we need a fundraising licence?

In this article we will answer this question and also provide an update on important changes affecting fundraising in Victoria and Western Australia.

What is fundraising?

One of the reasons for the complexity of fundraising is that it is defined differently under the laws of each State. In general, the following types of activities are classified as fundraising:

  • requesting donations to help a person, cause or organisation (whether in person or online)
  • selling merchandise where some or all of profits will go towards helping a person, cause or organisation, or
  • holding events to raise money for a person, cause or organisation.

Do I need a licence and if so, in which States?

Fundraising laws in Australia are not well known and can be tricky to navigate. There are different fundraising laws in each State and Territory (except the Northern Territory), so if your organisation is fundraising in several States or territories you will need to consider the laws in each of those places.

If you are fundraising locally (for example, by holding trivia nights in your area), then you only need to comply with the fundraising laws of your State or Territory.

If you are fundraising online, then you are fundraising wherever your website can be found, so you may not have realised it - but you are running a global fundraising campaign!

Can my charity operate throughout Australia?

A further issue that often gets overlooked is an incorporated association is only authorised to operate in the State of its incorporation. If your entity is an incorporated association and you’re conducting online fundraising, then to legally operate throughout Australia the entity must either:

  • migrate to the structure of a company limited by guarantee registered with the Australian Securities and Investments Commission (ASIC), or
  • apply to ASIC for an Australian Registered Body Number (ARBN) which authorises a State based incorporated association to operate throughout Australia.

Changes for Charities in Victoria

The Victorian government has passed the Consumer Legislation Amendment Act 2019 (Vic) (the Act). The Act makes some important changes to the Fundraising Act 1998 (Vic) (the Fundraising Act) and will commence on 31 August 2020 unless proclaimed to be effective earlier.

The Act amends the Fundraising Act to state that organisations already registered with the Australian Charities and Not-for-profits Commission (ACNC) will no longer need to register as a fundraiser with Consumer Affairs Victoria (CAV). Instead, they will only need to notify CAV of their intention to fundraise and they will then become ‘deemed registered fundraisers’. This is similar to the current situation for registered charities in South Australia.

It is important to note that a deemed registered fundraiser must notify CAV within 28 days if they enter into an agreement with a commercial fundraiser to conduct a fundraising appeal. Penalties may be imposed for not complying with this provision. The penalties bring the matter within the domain of ACNC Governance Standard 3, which means failing to comply is a breach of both the law and the governance standard.

Also, charities that are Victorian incorporated associations no longer need to duplicate reporting to both CAV and ACNC and so will only need to report their fundraising activities on the ACNC’s Annual Information Statement (AIS). These are welcome and important steps for reducing red tape for charities in Victoria and so a step closer to the ACNC fulfilling its objects, however more needs to be done to make such red tape reduction, in the area of fundraising compliance, uniform across Australia.

For non-ACNC entities in Victoria (e.g. not-for-profit sporting clubs) the existing registration process continues and so a fundraising licence is still required.

Changes for Charities in Western Australia

Western Australia (WA) has addressed the onerous compliance requirements of charities and made welcome changes to its Charitable Collections Act 1946 (WA).

As a result of these changes:

  • charity fundraising licences in WA no longer have an expiry date (this means they don’t have to be renewed every three years as was required previously), and
  • charities based in WA and registered with the ACNC no longer need to submit annual financial Statements to both the ACNC and WA Consumer Protection

To participate in this arrangement, eligible WA charities must provide their WA fundraising licence number when submitting their AIS to the ACNC.

For more information, read the announcement from the WA Government.

Need more information?

If you require further advice or assistance to obtain a fundraising licence for your charity or not-for-profit, or need to register an incorporated association with an ARBN to operate throughout Australia, please contact the Sharrock Pitman Legal’s not-for-profit team on 1300 205 506. We would be happy to provide more detailed advice tailored to your organisation’s circumstances and objectives and to assist with your fundraising licensing compliance.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Dan Saunders

For further information contact

Dan Saunders

Dan is a Legal Practitioner at Sharrock Pitman Legal.

He deals with areas of Charities & Not for Profit Law and Commercial Law. For further information, contact Dan on his direct line (03) 8561 3325.

More on

Charities & Not For Profits

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers' using the electronic Court filing system. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.