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Do you need help with Probate?

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Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business 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

Setting up a not for profit organisation can be a complex and rather daunting process. We have compiled a checklist of key matters that you will need to consider when setting up a not for profit organisation.

1. Purpose

It may sound basic, but one of the most important steps in establishing a not for profit organisation is to clearly write down the purpose of the organisation. You will need to include the organisation’s purpose in its governing documents, and in the organisation’s registrations with government bodies.

2. Members and management

Not for profit organisations require both members and a management committee or board of directors. The management committee or board of directors are responsible for the governance of the organisation. The members are the group responsible for appointing and removing management committee members or directors, and are therefore the group that has ultimate control over the organisation.

You will need to establish both a membership base, and then decide who the founding committee members or directors of the organisation will be.

3. Legal Structure

As a not for profit organisation, there are three main legal structures through which you could operate your organisation.

Be aware that if you decide to incorporate your organisation, you will need to register with either Consumer Affairs (for an association that is incorporated in Victoria) or with ASIC (for a company limited by guarantee).

4. Constitution or Rules of Association

Your organisation will need either a Constitution or Rules of Association. The Constitution or Rules of Association will need to specify the purpose of the organisation.

To qualify as not for profit organisation, the Constitution or Rules of Association must provide that the income and assets of the organisation cannot be distributed to the organisation’s members.

If you would like assistance preparing a Constitution or Rules of Association, please do not hesitate to contact us.

5. Organisation name, ABN and GST registration

You will need to register a business name, Australian Business Number (ABN) and register GST for your organisation. You can register for each of these at the Commonwealth Government’s Business Registration Service.

6. ACNC registration

If your not for profit organisation qualifies as a charity, you will need to register it with the Australian Charities and Not-for-profits Commission (‘ACNC’). Charities have ongoing reporting obligations to the ACNC.

7. Tax exemptions

Not for profit organisations are often exempt from paying taxes, including income tax. In our previous article, ‘What makes a non profit organisation tax exempt?’, we explain the requirements for obtaining an income tax exemption.

8. Fundraising

You will need to consider how your organisation will raise funds. It may choose to raise funds by:

  • accepting donations
  • obtaining grants
  • charging membership fees, or
  • by conducting fundraising appeals.

There are regulations that govern fundraising activities such as fundraising appeals, raffles, and competitions, including under the Fundraising Act 1998 (Vic) and the Gambling Regulation Act 2003 (Vic).

We recommend that you speak to Consumer Affairs, the Victorian Commission for Gambling and Liquor Regulation, or obtain legal advice prior to engaging in fundraising appeals, raffles or competitions.

9. Deductible gift recipient status for charities

Some charities will be entitled to obtain deductible gift recipient (‘DGR’) status for either some or all of their activities. This allows the organisation’s donors to obtain a tax deduction on gifts they provide to the organisation.

The eligibility criteria for DGR status are strict. We recommend obtaining legal advice prior to applying for DGR status.

10. Domain name registration

Once your organisation has an ABN, you will be able to register an Australian .org.au domain name.

You may also want to register other domain names, such as a .org domain name.

11. Employees and Employment agreements

You will need to check whether your organisation’s employees are covered by a Modern Award, and ensure that your organisation is complying with its obligations under the Fair Work Act 2009 (Cth) including any relevant Modern Award and applicable state legislation.

We recommend preparing written employment agreements for use with your organisation’s employees.

A written employment agreement will document the terms on which your organisation engages its employees and protect your organisation’s interests as the employer.

12. Superannuation

Your organisation will be required to pay superannuation to its employees.

13. WorkCover insurance

Your organisation will need to provide WorkCover insurance for its employees.

14. Public liability, product liability, management insurance and volunteers insurance

Your organisation should obtain appropriate insurance to protect your organisation and its directors or management committee members and volunteers. Insurance products you should consider include:

  • public liability
  • product liability
  • management insurance, and
  • volunteers insurance.

How can Sharrock Pitman Legal assist?

We at Sharrock Pitman Legal have extensive experience helping not for profit organisations get up and running. If you would like any advice or assistance starting a not for profit organisation, please do not hesitate Dan Saunders on 1300 205 506 or alternatively fill in the contact form below.

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

,

.

Samuel Ellemor

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'. 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 a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business 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.