Leaving a bequest or a gift to a charity in your Will is a good way to continue support for a charity that is close to your heart, long after you’re gone. A charitable bequest can be made alongside distributions to children, family members and friends, or alternatively, your entire estate can be distributed to charities.

Types of Gifts

Bequests to charities in your Will can take the following forms:

A gift of a specific sum of money,
A gift of a percentage of your overall estate, or
A gift of a particular assets (i.e. property, shares, etc.)

Flexible Drafting

If you intend to make a bequest to a charity in your Will, it is important to ensure your Will is drafted in order to cover any future changes to the charities structure, such as amalgamation or change of name. This can be done by empowering your executor(s) to distribute your gift to the amalgamated or renamed charity, or, in the case of charities that have since closed, to a charity with a similar charitable purpose. This ensures that your wishes will not go unfulfilled.

Tax Benefits

As well as the philanthropic benefits that come with gifts to charities, bequests can also have advantageous tax implications.

Bequests of assets in your Will (i.e. shares, real estate, etc.) to a charity can have significant tax implications for the receiving charity. Where the charity is a registered Deductible Gift Recipient (DGR), an exemption from Capital Gains Tax (CGT) may apply, such that any capital gain on the asset bequeathed to a charity is disregarded in the hands of the charity.

While donations to a DGR during your lifetime are fully tax-deductible, charitable bequests of money in your Will do not receive the same treatment. If you do require a tax deduction for your gift, it’s worth considering (where possible) making donations to your chosen DGR charity prior to your passing. This would allow you to receive the accompanying tax benefits within your lifetime.

Charitable Giving Fund

A charity giving fund, also known as an ancillary fund, is a vehicle for public and private philanthropy. It is a type of charitable trust designed to provide an investment structure for philanthropic giving purposes. Simple and quick to set up, it offers tax deductions to donors and tax exemptions for income earned by the fund.

Establishing an ancillary fund during your lifetime is another effective tool to facilitate your philanthropic endeavours and would allow you to donate periodically over an extended period of time, preserving your gift for many years to come.

For more information on setting up a charity giving fund (ancillary fund) please refer to our previous article.

For an extensive list of Australian charities to whom you can make a bequest, and the causes they support, visit Include a Charity.

How can Sharrock Pitman Legal assist?

Please do not hesitate to contact us if you would like to include a charity in your Will or for any other Wills and Estates or Charity and Not-for-profit enquiries. Please feel free to call our Wills and Estates team ‍ on 1300 205 506 if you have any queries.

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

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.

Taxes and deceased estates

Can I refuse to act as an Executor?

ACNC Governance Standards for Charities

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.

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

Free Property Law webinar -

Land Development and Joint Ventures

Leaving a Gift to a Charity

Types of Gifts

Flexible Drafting

Tax Benefits

Charitable Giving Fund