COVID-19 - Updates, Webinars and Resources

Do you 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:


CALL: (03) 8561 3318

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

1. Purpose

It may sound basic, but one of the most important steps when establishing a charity is to clearly write down the purpose of the organisation. You will need to include the organisation’s charitable purpose in its governing documents and in registration applications with government bodies.

2. Members and management

Charities and 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 a membership base and must also decide who the founding committee members or directors of the organisation will be. Often the founding members and directors are the same people. Keep in mind that different legal structures require different numbers of founding members and directors.

3. Legal Structure

As a charity, there are two 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). Occasionally, and when required by legislation or the existing corporate structure, a charity will be established as a Charitable Trust or a separate Fund.

4. Constitution

Whether established as an incorporated association or a company limited by guarantee, your organisation will need a Constitution or Rules (depending on the type of organisation). This will need to specify the charitable purpose of the organisation.

To qualify as not-for-profit organisation, the Constitution or Rules must provide that the income and assets of the organisation cannot be distributed to the organisation’s members. A charity’s Constitution or Rules must also have all the required winding up and revocation clauses, and we recommend a conflicts of interest procedure and reference to the obligation to comply with the Australian Charities and Not-for-profits Commission (ACNC) Governance Standards.

5. ABN and GST registration

You will need to register for an 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 & reporting

If your not-for-profit organisation qualifies as a charity, you will need to register it with the ACNC. Depending on its size, charities have ongoing reporting obligations to the ACNC, such as filing an annual financial statement or audited accounts and lodging the ACNC’s Annual Information Statement.

7. Tax exemptions

Not-for-profit organisations and charities are often exempt from paying taxes, including income tax. Many charities may also be fringe benefit tax exempt or eligible for a rebate. Different registrations are required for different tax concessions.

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 currently different regulations in each State 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). Fundraising may also be regulated by the Australian Consumer Code.

We recommend that you speak to Consumer Affairs Victoria, 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 for gifts of $2 or more that they provide to the organisation. The eligibility criteria for DGR status are strict and not all charities will qualify to be DGR’s. We recommend obtaining legal advice prior to applying for DGR status.

10. Bank Accounts and Domain name registration

Once your organisation has an ABN, you will be able to open a bank account and 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 & WorkCover insurance

Your organisation will be required to pay superannuation and provide WorkCover insurance for its employees.

13. Protection of Intellectual Property

If your charity has a distinctive name, logo or brand, you may consider registering that name, logo or brand as a trademark in order to obtain exclusive property rights to that name, logo or brand.

14. 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,
  • Directors and Office bearer’s insurance (DOI),
  • 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 a member of our Legal Team

,

.

Dan Saunders

For further information contact

Dan Saunders

Dan is an Associate Lawyer 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 Supreme 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 published on the Supreme Court website for at least 14 days prior to any application being lodged.

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 usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes 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 or Letters of Administration. 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

Download our FREE handbook "Managing the Dismissal of an Employee"

GET YOUR FREE DOWNLOAD

Enter your details

Thanks for your interest! 

Here's your download:
DOWNLOAD PDF
Oops! Something went wrong while submitting the form.

Download our FREE legal guide to starting a charity in Australia

GET YOUR FREE DOWNLOAD

Enter your details

Thanks for your interest! 

Here's your download:
DOWNLOAD PDF
Oops! Something went wrong while submitting the form.

Download our FREE legal guide to Probates & Estates in Australia

GET YOUR FREE DOWNLOAD

Enter your details

Thanks for your interest! 

Here's your download:
DOWNLOAD PDF
Oops! Something went wrong while submitting the form.

Could your business do with a “health check”?

Fill in our survey about the legal health of your business and get 30 minutes FREE legal advice!

FILL OUT SURVEY NOW

Could your Not for Profit organisation do with a "health check"?

Fill in our survey about the legal health of your organisation and get 30 minutes FREE legal advice!

FILL OUT SURVEY NOW

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.