Mr Zhang's mother died in Melbourne, and her will named him as executor. He lives in Singapore and has only two weeks in Melbourne to arrange the funeral. His main concerns are: what must be done straight away, what can wait, and could he be personally liable if he gets something wrong?
The direct answer: the first 90 days focus on three things: protecting assets, confirming the will and the assets and liabilities, and preparing to apply to the Supreme Court of Victoria for probate. Before probate is granted, an executor generally should not sell major assets or distribute the estate.
At a glance
- First find the latest original will; the original will must be lodged with the court.
- Secure the home, car and valuables, and make sure insurance remains in force.
- Probate is applied for through the Supreme Court's RedCrest online system, and a notice of intention must be published, followed by a waiting period, before applying.
- Before distributing the estate, the executor must deal with debts and tax and watch for possible claims against the estate.
- An executor living overseas can still act, but signing and witnessing documents is harder and needs planning.
Weeks 1 to 2: stabilise the situation
- Arrange the funeral with a funeral director. The funeral director usually helps register the death with Births, Deaths and Marriages Victoria and applies for the death certificate.
- Look for the original will: check papers at home, safe deposit boxes, law firms used in the past, and will banks such as State Trustees. Check whether there is a later will or a codicil.
- Protect assets: lock up the home, keep the keys and car safe, and tell the home insurer the property may be vacant so the policy is not affected by vacancy.
- Funeral costs: some banks will pay the funeral account directly from the deceased's account on seeing the death certificate and the funeral invoice, so ask the bank.
Weeks 3 to 6: notify and take stock
Once the death certificate is available, the executor should notify banks, super funds, insurers, share registries, the Australian Taxation Office (ATO), Services Australia (for Centrelink and Medicare) and utility providers. Bank accounts are usually frozen; this is a normal step.
At the same time, prepare a list of assets and liabilities, including the approximate value of each asset at the date of death. This list will later go into the affidavit supporting the probate application. Distinguish carefully: jointly held property and accounts, super, and life insurance with a nominated beneficiary usually do not form part of the estate, while overseas bank accounts and property may need separate procedures in those places.
Weeks 6 to 12: apply for probate
In Victoria, probate is handled through the Supreme Court's RedCrest-Probate online system. The first step is to publish a notice of intention to apply online, and wait the required period before filing. You then prepare an affidavit with the inventory of assets and liabilities, sign it before an authorised witness, file online, and post the original will, death certificate and other documents to the court. The court takes some time to process applications, and the fee is based on the value of the estate.
Whether probate is needed depends on the types of assets. If the deceased held real estate in their sole name, it is almost always required; if there are only small bank balances, some banks may release funds without probate, but each bank sets its own threshold.
In parallel: tax, debts and beneficiaries
The executor is responsible for lodging the deceased's individual tax return from the end of the previous financial year to the date of death (the date of death return), plus any earlier years not yet lodged. If the estate earns rent, interest or dividends while it is being administered, separate tax returns may be needed in the name of the estate. It is best to contact the deceased's accountant early and notify the ATO of the death.
As for debts, the executor should collect credit card, loan, council rates, medical and aged care bills, and pay legitimate debts before distribution. If the estate cannot pay all its debts, they must be dealt with in the legal order of priority, and assets must not be handed to family members first.
Where beneficiaries live overseas, pay particular attention to the tax consequences. For example, when certain assets pass to a beneficiary who is not an Australian tax resident, capital gains tax may arise in the deceased's final return. The executor should get tax advice before deciding how to distribute.
Common executor mistakes
- Handing out belongings or letting family members move into the house before probate, which leads to disputes later.
- Mixing estate money with your own and not keeping records of income and expenses.
- Overlooking the deceased's final individual tax return and any tax returns the estate itself may need to lodge.
- Distributing the estate before the time limit for claims (generally six months after the grant of probate) has passed, which may expose the executor to personal liability.
- Not keeping beneficiaries informed, which breeds mistrust.
If you do not want to or cannot act as executor, you can formally renounce before you start dealing with the estate, but once you have begun administering it, renouncing becomes difficult. An executor living overseas may also consider authorising someone in Australia to apply on their behalf.
Frequently asked questions
Can an executor who lives overseas apply for probate?
Yes. However, the affidavit must be signed before an authorised person, which is more complicated overseas and may require a local notary or an Australian embassy or consulate. Authorising someone in Australia to apply is another option.
What if the original will can't be found?
If only a copy exists, it may still be possible to obtain probate, but extra evidence about what happened to the original is required and the court looks at it more closely. Get legal advice promptly.
Can an executor be paid?
In principle an executor is not paid unless the will allows it, the beneficiaries agree or the court approves it. However, an executor can be reimbursed from the estate for reasonable expenses.
How long does probate take?
It depends on how long the documents take to prepare, the notice period and the court's processing time. A simple matter with complete documents usually takes several months; overseas assets or disputes take longer.
The deceased also had assets in China or Malaysia. How are they dealt with?
Australian probate generally deals only with Australian assets. Overseas assets usually require local procedures, which may need notarised and authenticated documents, so local lawyers should be consulted at the same time.
Chua Tan Associates has practised in Melbourne since 1990, providing wills, powers of attorney, probate and estate administration services in Mandarin, Cantonese and English. Justin Chua is a STEP Affiliate and a nationally accredited mediator, and the firm has a notary public who can notarise documents for use overseas. For help, call 03 9602 3988 or contact us online. We can meet at our Melbourne CBD office or by video.
This page provides general information only and is not legal advice.
重要提示: 本文仅为一般资讯, 不得作为依据. 本文并非法律, 税务或财务意见, 没有考虑您的个人情况, 亦可能未反映发布后的法律变化. 其他国家的法律也可能适用. 请勿仅依据本文采取或不采取任何行动. 阅读本文或与我们联系, 并不构成律师与客户关系. 如需针对您情况的意见, 请预约咨询.
简体中文 
English (Australia) 
繁體中文