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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

What are they?

The External Conduct Standards are a set of four standards that govern a registered charity’s operations outside Australia. The External Conduct Standards came into effect in August 2019.

The External Conduct Standards aim to increase a charity’s transparency and governance, as well as ensuring any money or other resources a charity sends overseas reach their intended destinations, and that they are only used for purposes and activities consistent with the charity’s purposes.

The External Conduct Standards also aim to help protect vulnerable persons overseas - whether that be people helped by the charity or charity staff and volunteers.

What do they cover?

Any charity operating overseas and subject to the External Conduct Standards – including small charities – must take reasonable steps to ensure appropriate standards of behaviour, governance and oversight when undertaking overseas activities in relation to the following four areas:

See the links above for more information on each standard.

Who must comply with the External Conduct Standards?

Any registered charity that operates outside Australia must comply with the External Conduct Standards.

This requirement encompasses charities of all sizes, including small charities that have or fund overseas operations, or work with third parties/partners that carry out operations outside of Australia.

What does ‘operating outside Australia’ mean?

Operating outside Australia isn’t limited to just major programs or significant projects. Even if a minor portion of your activities occurs overseas or your charity only sends a small amount of money overseas, it is likely your charity will be considered to operate outside Australia and therefore will have to comply with the External Conduct Standards.

What does my charity have to do?

A charity must take reasonable steps to meet the External Conduct Standards. Reasonable steps will vary depending on the charity’s size and operations. Larger charities with more complex overseas operations will need to do more to comply with the standards than a small charity with relatively straightforward operations overseas.

Examples of what may be required include:

  • management plans;
  • policies or procedures; and
  • contracts or MOU’s with overseas project partners.

If the ACNC requests evidence that you are meeting the External Conduct Standards, you must be able to provide documentary evidence.

New organisations seeking registration with the ACNC (and charities applying for new charitable subtypes) that have overseas operations, will be asked about the steps they have taken to comply with these standards and will also need to provide documentary evidence.

Key points to consider

The ACNC lists the following key points:

  • The External Conduct Standards are a set of standards that govern a registered charity’s operations outside Australia.
  • The External Conduct Standards apply to charities that operate outside Australia. Examples of operating outside Australia include a charity working on projects or programs overseas, sending money overseas, or working with third parties that are operating outside of Australia.
  • The External Conduct Standards apply in addition to the ACNC Governance Standards. While Basic Religious Charities do not need to comply with the Governance Standards, they must also comply with the External Conduct Standards if they operate overseas.
  • The ACNC will oversee the External Conduct Standards in line with its regulatory approach.

How can Sharrock Pitman Legal assist?

If you are a registered charity operating overseas, feel free to contact Dan Saunders on (03) 8561 3325 for any queries you may have in relation to the External Conduct Standards and what your charity may be required to do to take reasonable steps to seek to meet these standards.

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'. 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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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.