Incorporated Associations are very common. Your local sporting club, community club or other organisation is likely to be an Incorporated Association. All Incorporated Associations must comply with certain laws and regulations. In recent months, the laws in Victoria changed after the introduction of the Associations Incorporation Reform Act 2012, which is the new Act that must be followed by all Associations. This means that practically all Associations will need to make some changes to comply with the new laws.

So what are some of the key changes?

Associations are no longer prohibited from trading, as long as it is consistent with the Association's main purposes and not for the purpose of obtaining profits for members.
Clearer legal duties of office holders. This includes duties imposed on committee members, the Secretary and any other person who is influential in the Association or is involved in key decision making.
New privacy requirements, including the right of members to restrict access to their personal information.
Additional items to be included in the Rules of the Association, including procedures for the resignation of a member, keeping accurate minutes of all general and committee meetings, and addressing the rights, obligations and liabilities of members.
A new financial reporting structure.
Associations will now have 'Secretaries' instead of 'Public Officers'.
New grievance and disciplinary procedures.

What to do now?

There is a transitional period which expires on 26 November 2013. By that time, every Association that currently uses the Model Rules will need to either:

Adopt the new Model Rules; or

Draft and adopt their own new Rules which comply with the new Act.If your Association uses the Model Rules and does nothing, the new Model Rules will automatically apply from 26 November 2013. Given that the new default Model Rules are very different to the old Rules, they might not be suitable for every Association. We recommend that every Association acts early to consider the new Rules and whether or not they should be adopted 'as is' or, instead, whether unique Rules should be drafted to suit the particular Association and its needs (while still complying with the new Act, of course!).

Associations that already have their own unique set of Rules (i.e. not the Model Rules) can continue to use those Rules after 26 November 2013. However, if those Rules are changed in the future, the new Rules must be updated to include all the recent changes.

If you have any queries on what your Association needs to do, please feel free to give Mitchell Zadow on 1300 205 506.

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.

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Incorporated Associations are very common. Your local sporting club, community club or other organisation is likely to be an Incorporated Association. All Incorporated Associations must comply with certain laws and regulations. In recent months, the laws in Victoria changed after the introduction of the Associations Incorporation Reform Act 2012, which is the new Act that must be followed by all Associations. This means that practically all Associations will need to make some changes to comply with the new laws.

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

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