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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

On 22 June 2020, the Australian Government introduced new legislation to help combat illegal phoenixing activities, amending the Corporations Act 2010 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 by introducing Director Identification Numbers.

What is phoenixing?

Phoenexing occurs when a company goes into voluntary liquidation to:  

  • avoid paying taxes
  • avoid paying creditors and employee entitlements,
  • transfer its assets to a new company with often a similar business structure and ownership.

The ‘new’ company ‘rises from the ashes’ and goes on trading as usual. It is estimated that these types of activities cost the Australian economy between $2.9 billion to $5.1 billion annually.

What is a Director Identification Number?

The current law requires details of directors to be lodged with ASIC. The new legislation goes further and mandates that all company directors (and acting alternate directors) registered under the Corporations Act must be verified and given a Director Identification Number (‘DIN’). A DIN must be issued and stored by all directors, regardless of whether they have acted for a short period of time or have ceased acting altogether, and must be done within 28 days of appointment.

The objective of the legislation is to promote good corporate conduct through the following four requirements:  

  • Directors are required to apply for a DIN before being appointed as a director;
  • Directors are required to apply for a DIN within a prescribed period of being a director;
  • A person is prohibited from knowingly applying for multiple DINs; and
  • It is illegal to misrepresent a DIN to a government or registered body.

The purposes of the DIN are to:

  • trace a director’s relationship across companies;  
  • identify failed companies; and
  • prevent identity fraud, which will assist regulators in investigating whether a director has engaged in unlawful activity.

Contravening the DIN requirements could result in criminal and/or civil penalties.

What you need to do

It is expected that the introduction of the DIN regime will commence in the first half of 2021, however we anticipate that due to the Australian Government’s priorities in light of COVID-19, it may not take effect until 2022.

When the DIN is implemented, all existing company directors will have 12 months to register, with new directors having 28 days to do so before penalties may be issued.

We will be sure to provide updates on our website when a date has been set.

Need further information?

It is imperative for company directors to ensure their records are kept up to date. If you would like further information regarding these changes, please contact our Accredited Specialist Commercial Law team on 1300 205 506 and we will be happy to assist.

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

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For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

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. For further information, contact Mitchell on his direct line (03) 8561 3318.

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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 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.