Take control of the estate
The executor's first task is to locate the original will, obtain the death certificate, and take steps to preserve estate assets — securing property, redirecting mail, notifying insurers, cancelling recurring payments. Where a business is being run at the date of death, urgent decisions about continuity may fall to the executor even before probate has been granted.
Apply for probate where required
Where the estate holds real estate in the sole name of the deceased, or where asset holders require formal authority, the executor applies to the Supreme Court of Victoria for a grant of probate. Until the grant issues, the executor's authority is limited and most institutions will not deal on their instructions.
Collect assets and pay liabilities
After the grant, the executor closes accounts, redeems investments, sells or transfers real estate in accordance with the will, and pays the deceased's debts, funeral and testamentary expenses. Where the estate is solvent but tight, the order in which debts are paid is prescribed and cannot be varied at the executor's preference.
Deal with income tax
The executor is responsible for the deceased's final personal income tax return (to date of death) and for the trust returns of the deceased estate for each year of administration. Where the estate holds appreciating assets, capital gains tax considerations arise on transfer to beneficiaries and on sale. An executor who distributes without provision for tax may be personally exposed.
Protect the estate from claims
An executor should not distribute the estate during the six-month claim window under Part IV of the Administration and Probate Act 1958 (Vic), and should obtain advice before distributing if any claim has been foreshadowed. Publication of a notice under section 33 of the Trustee Act 1958 (Vic) provides some protection against unknown creditor claims but does not extinguish a Part IV claim.
Keep proper accounts
The executor must keep records sufficient to explain what was received, what was paid, and what remains. Beneficiaries are generally entitled to an account of administration; the Court can compel one where the executor refuses. Poor record-keeping is one of the most common triggers for executor disputes.
Distribute the residue
Once liabilities have been discharged and any Part IV claim period has passed, the executor distributes the residue in accordance with the will. Interim distributions are permissible where the estate can plainly meet its remaining obligations. On final distribution, executors usually obtain a release from beneficiaries confirming the accounts.
When things go wrong
Common flashpoints include: co-executors who cannot agree; a beneficiary demanding information; sale of the family home at a disputed price; a Part IV claim that stalls the administration; or an executor accused of preferring their own interest. Where a dispute cannot be resolved informally, an application for judicial advice, removal of the executor, or an accounts proceeding may be necessary — see our contested wills and TFM claims practice.
How Hanlons can help
We act for Victorian executors from the first weeks after a death through to final distribution — the Court application, the correspondence with asset holders, the estate accounts, the tax returns and, where necessary, the defence of the estate. For an overview see probate and deceased estates.
General information only
This article provides general information about Victorian law and is not legal advice. Estate disputes and contested wills turn on individual facts and strict statutory time limits. For advice tailored to your circumstances, please speak with our contested wills team or send an enquiry.