When a parent dies, one sibling is often named as executor. The other children, sometimes living overseas, find themselves waiting. Months pass, calls go unanswered, the family home is still not sold, and someone mentions that the executor intends to claim a commission.
Being a beneficiary does not give you control of the estate, but it does give you rights. This article explains, in general terms and focusing on Victoria, what beneficiaries can usually expect and the options that may be available when the administration is not going well.
What you can reasonably expect
An executor holds the estate’s assets for the beneficiaries, not for themselves. That fiduciary role carries duties to act honestly, keep proper records, avoid conflicts and administer the estate with reasonable diligence. In practice, beneficiaries can generally expect:
- A copy of the Will once probate has been applied for or granted. In Victoria, once a grant has been made, the probate file can generally be searched through the Supreme Court’s Probate Office.
- Information about the estate: what the assets and debts are, and the main steps being taken.
- Accounts: a record of what has come into the estate, what has been paid out and why.
- Reasonable progress: the estate should move towards distribution without unexplained delay.
What a beneficiary is entitled to, and when, depends on the type of gift and the stage of the administration.
The “executor’s year”
A long-standing principle is that an executor is generally given a year from the date of death to collect the assets, pay the debts and distribute the estate. It is often called the “executor’s year”. It is not a fixed deadline. Some estates take longer for good reasons, such as a hard-to-sell property, overseas assets or a family provision claim. In Victoria, an executor also needs to be careful about distributing early while a claim against the estate is still possible.
The executor’s year is therefore a guide to what is reasonable, not a guarantee. Where an estate drifts well beyond it with no clear explanation, beneficiaries are entitled to ask why. Unpaid cash legacies may also attract interest after a period, depending on the Will and the legislation.
Executor’s commission
Many families are surprised to learn that an executor may be paid for their work. In Victoria, an executor may receive commission if the Will authorises it, if the beneficiaries give informed consent, or if the Supreme Court allows it under section 65 of the Administration and Probate Act 1958. The court can allow an amount it considers just and reasonable for the executor’s “pains and trouble”, within a statutory limit. Sections 65A to 65E add further rules, including disclosure requirements in some cases and the court’s power to reduce excessive commission or order it repaid.
Beneficiaries who receive a request to consent to commission, or notice of an application, can ask for information before responding: what work was done, how long it took, what professional help was paid for separately, and how the amount was calculated. Commission may be refused or reduced where the executor breached their duties. Whether to agree, negotiate or oppose needs advice on the facts.
Delay, silence and conflicts
Most disputes with executors come from delay, poor communication or an unmanaged conflict of interest, for example:
- an executor who is also a beneficiary and makes decisions that favour their own share;
- an executor who owes money to the estate, or is owed money by it;
- an executor running a family business that forms part of the estate;
- an executor living in the deceased’s home without paying rent or moving towards a sale.
An executor living in the deceased’s property raises particular issues, discussed in our separate article on a beneficiary living in estate property. The usual questions are whether the arrangement is authorised or agreed, whether it is costing the estate, and whether the executor’s personal interest is affecting their decisions.
Court options in Victoria
When requests and negotiation fail, the Supreme Court of Victoria has a range of powers. In general terms:
- Requiring an account. Under the Supreme Court (Administration and Probate) Rules 2023, the court or the Registrar of Probates can require an executor to file an administration account. The court’s Probate Office has a form for interested people to ask the Registrar to do this. The Registrar usually expects the person to have first tried to get the account from the executor directly.
- Passing of accounts. In some cases, the executor’s accounts can be formally examined and approved by the court. This is often linked to a claim for commission.
- Removal or replacement. The court can discharge an executor and appoint someone else to administer the estate, under section 34 of the Administration and Probate Act 1958, the Trustee Act 1958 and its inherent jurisdiction. Courts generally focus on whether the estate is being properly administered; family hostility alone is not always enough.
Court proceedings are costly and slow, and who pays the costs can depend on the outcome and each party’s conduct.
Mediation
Many executor disputes are about relationships as much as money. A sibling who feels excluded may want a voice more than an order. Mediation gives the family a confidential setting to deal with information, timing, commission and a sale of the home together. Contested estate matters are commonly referred to mediation in any event, and an early mediation, before positions harden, can leave more room for agreement.
Beneficiaries living overseas
For beneficiaries in Asia, the practical problems are often different. Documents may arrive in English only, and the beneficiary may need to provide identity documents, bank details or a signed release, sometimes notarised. Receiving funds raises currency, bank compliance and tax questions in both countries. Our separate article on overseas beneficiaries of an Australian estate covers these issues in more detail.
Questions to discuss with your adviser
- What type of gift do I receive under the Will, and when might it fall due?
- What information and accounts have I asked for, and what has the executor provided?
- Is there a reason for the delay?
- Does the executor have a personal interest that may be affecting decisions?
- Is commission being claimed, and on what basis?
- Would mediation help before any court application?
Frequently asked questions
What can I do if the executor is not communicating with beneficiaries in Victoria?
Beneficiaries can usually start by asking in writing for information and accounts. If that fails, there may be options such as asking the Registrar of Probates to require an administration account, mediation, or in serious cases a court application. The right step depends on the circumstances.
How long does an executor have to distribute an estate in Australia?
Generally, executors are given about a year from the date of death, often called the executor’s year. Some estates reasonably take longer, so the question is whether the delay is explained and justified.
Can an executor charge a fee in Victoria?
An executor may receive commission if the Will allows it, if the beneficiaries consent, or if the court allows it. Beneficiaries can ask questions about, and in some cases challenge, the amount claimed.
Every family’s situation is different, and the answer often turns on details. Book a consultation so we can review your documents and circumstances before you act.
How Chua Tan Associates can help
Chua Tan Associates advises beneficiaries in Australia and overseas who are concerned about how an estate is being administered. We review the Will, the probate documents and any accounts provided, help beneficiaries ask for information in a measured way, respond to commission claims, and advise on options in the Supreme Court of Victoria. Justin Chua is a Nationally Accredited Mediator and an Accredited Family Business Advisor, and is an affiliate member of STEP (the Society of Trust and Estate Practitioners). He trained in accounting (Bachelor of Commerce, accounting major). We work with the family’s accountant and registered tax agents, and the firm’s notary public assists overseas beneficiaries with documents. We advise in English, Mandarin and Cantonese.
Important: This article is general information only and must not be relied on. It is not legal, tax or financial advice, does not take your circumstances into account, and may not reflect changes in the law after publication. Laws of other countries may also apply. Do not act or refrain from acting on the basis of this article. Reading it or contacting us does not create a lawyer–client relationship. Please book a consultation for advice on your situation.
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Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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