An executor’s job is to protect the deceased person’s assets, obtain authority to deal with them (usually a grant of probate), pay the debts, funeral costs and tax in the right order, and then distribute what is left in accordance with the Will. The work is staged, and most problems come from doing a step too early, such as paying a beneficiary before the family provision period has passed or before tax has been provided for. The checklist below uses Victoria as the main example and notes where other states differ.
Stage 1: The first days
An executor’s authority comes from the Will, so an executor can take protective steps before probate is granted. For the practical side of the first week, see our guide on what to do when someone dies.
- Find the original Will and any codicils. Check the home, safe custody with a law firm or bank, and the Supreme Court’s register of deposited Wills. Do not unstaple, mark or alter the original.
- Arrange the funeral, keeping it reasonable for the size of the estate. Keep every invoice; reasonable funeral costs are repaid from the estate.
- Secure property: lock the home, collect keys, secure vehicles, valuables and documents, and photograph the contents.
- Check insurance: tell the home and contents insurer about the death. Many policies restrict cover if a home is left unoccupied for a period, so ask what the insurer requires.
- Redirect mail so that bills, statements and tax notices reach you.
- Arrange care for pets and anything else needing immediate attention (perishables, utilities, a business).
- Obtain the death certificate from the state registry of births, deaths and marriages.
- Do not distribute anything yet, including family heirlooms, even if relatives ask.
Stage 2: Identify assets and liabilities
Build a list of everything the deceased owned and owed, with approximate values at the date of death. In Victoria, this becomes the inventory of assets and liabilities filed with the probate application.
| Item | What to check |
|---|
| Bank accounts | Balances at date of death; sole or joint names; term deposits. |
| Shares and investments | Share registry holdings (HIN/SRN), managed funds, dividends unpaid at death. |
| Real estate | How title is held. Property held as joint tenants passes to the survivor; property held solely or as tenants in common forms part of the estate. |
| Superannuation | Contact each fund. Super is paid by the fund trustee and does not automatically form part of the estate, especially where there is a binding nomination. |
| Life insurance | Policies held directly and within super; who the nominated beneficiary is. |
| Digital assets | Email, online banking, cryptocurrency, photos, loyalty points, social media. Never use the deceased’s passwords to move money; follow each platform’s deceased-user process. |
| Overseas assets | Bank accounts, property and shares in China, Hong Kong, Taiwan, Singapore, Malaysia or elsewhere. These may need a separate process in that country. |
| Liabilities | Mortgages, credit cards, personal loans, tax, council rates, owners corporation levies, aged care fees, amounts owed to family members. |
Stage 3: Decide whether probate is needed
Not every estate needs a grant. The Supreme Court of Victoria notes that a grant is generally required where the executor must prove their title to assets, and that real estate held in the deceased’s sole name or as a tenant in common always requires one. Banks and insurers may release small amounts without a grant on their own conditions. Our article Do I need probate? explains how to decide.
Stage 4: Apply for probate
Victoria
- Create a RedCrest-Probate account on the Supreme Court website.
- Publish a notice of intention to apply through RedCrest-Probate. The Court’s current guidance is that you must wait at least 15 days after publication before filing. A published notice cannot be changed; an error means re-advertising.
- RedCrest-Probate generates the affidavit and the inventory of assets and liabilities. The affidavit must be sworn or affirmed before an authorised witness.
- File online with the scanned Will, death certificate and inventory, pay the fee, and post the original Will and other documents the Court requests.
- Respond to any requisitions. The grant is issued electronically, and asset holders view it on RedCrest-Probate.
There is no time limit to apply, but if more than three years have passed since death the delay must be explained. The Court generally will not grant probate to more than four executors; others can have leave reserved to apply later.
Other states
In New South Wales, notice of the intended application must be published on the NSW Online Registry at least 14 days before filing. Queensland, Western Australia, South Australia, Tasmania, the ACT and the Northern Territory each have their own notice, advertising and filing rules, and our state-by-state probate guides cover them. If the deceased left assets in more than one state, a grant may be needed in each, or a Victorian grant may be resealed in the other state.
Stage 5: Collect the assets
- Send the grant details to each bank, share registry and insurer, and open an estate bank account.
- Close or freeze accounts and cancel direct debits, subscriptions and pensions.
- Have real estate valued at the date of death (useful for tax and family provision purposes) and decide, consistently with the Will, whether to sell or transfer it.
- Keep estate money separate from your own at all times. Mixing funds is a common source of disputes and personal liability.
- As a trustee, invest any money held for a period prudently, consistently with the Trustee Act 1958 (Vic).
Stage 6: Pay debts and funeral costs in the right order
In a solvent estate, the executor pays the funeral, testamentary and administration expenses and the debts, then distributes the balance. The Will and the Administration and Probate Act 1958 (Vic) set the order in which estate assets are used to pay debts, which matters when some gifts must be reduced.
If the debts may exceed the assets, stop. In Victoria, section 39 of the Act applies the bankruptcy rules on priorities to insolvent estates, with funeral, testamentary and administration expenses paid first. An executor who pays one creditor (or a family member) in full ahead of creditors with equal or higher priority can be personally liable for the shortfall. An insolvent estate can also be administered under the federal bankruptcy legislation. Obtain legal advice before paying anything beyond urgent costs.
Stage 7: Tax
The ATO’s deceased estate guidance sets out the main obligations. The right answer always depends on the facts, so obtain advice from an accountant or tax adviser.
- Notify the ATO of the death and record who will manage the tax affairs.
- Date-of-death return: covers 1 July of the year of death to the date of death. Lodge on paper, marked “DECEASED ESTATE”. If no return is needed, lodge a non-lodgment advice.
- Prior-year returns: any outstanding earlier returns must also be lodged.
- Estate trust returns: the estate is a separate taxpayer from the day after death. It may need its own tax file number and trust returns until it is finalised. The lodgement tests are different in the first three income years.
- Capital gains tax: there is generally no CGT at death when an asset passes to an Australian beneficiary, but CGT can arise when the executor or beneficiary later sells. A dwelling that was the deceased’s main residence (and not producing income at death), or that was acquired before 20 September 1985, can be fully exempt if disposed of within two years of death, with limited extensions. Different rules apply where an asset passes to a foreign resident.
- Provide for tax before distributing. The ATO states that the legal personal representative can be personally liable for the deceased’s tax if assets are distributed after the representative is on notice of an ATO claim. Practical Compliance Guideline PCG 2018/4 explains when executors of less complex estates can finalise without that concern.
Stage 8: Wait before distributing
In Victoria, an eligible person can apply for family provision within six months of the grant (s 99 of the Act). Under s 99A, an executor who properly distributes more than six months after the grant is protected from claims if they have had no notice of an application, or had notice of an intended claim but no notice that it was filed within three months. Distribution earlier than that is at the executor’s risk, except in limited cases such as payments for the maintenance of a partner or dependent child, or where an eligible person has given written consent.
Separately, an executor can publish a notice to claimants under s 33 of the Trustee Act 1958 (Vic), giving at least two months for creditors and others to send in claims. After the period ends, the executor may distribute having regard only to claims of which they have notice.
| Jurisdiction | Family provision time limit |
|---|
| Victoria | 6 months from the grant |
| New South Wales | 12 months from death. An executor is protected distributing at least 6 months after death after giving at least 30 days’ notice of intended distribution, with no notice of a claim (s 93 Succession Act 2006). |
| Queensland | Written notice of intention within 6 months of death; application within 9 months of death |
| Western Australia, South Australia, ACT | 6 months from the grant |
| Tasmania | 3 months from the grant |
| Northern Territory | 12 months from the grant |
Courts can extend these periods in some circumstances, generally only against property not yet distributed.
Stage 9: Keep accounts and distribute
- Keep a running record of every receipt and payment, with invoices and statements. In Victoria, the Court or Registrar can require a verified account of the administration, and beneficiaries are entitled to see how the estate has been managed.
- Prepare final estate accounts showing assets collected, payments made and each beneficiary’s share.
- Hold back a reserve for final tax, costs and any late debts.
- Pay specific gifts and legacies, then distribute the residue.
- Obtain a signed receipt and release from each adult beneficiary. Gifts to children under 18 are usually held on trust, not paid to a parent.
Commission and expenses
Executors are entitled to be reimbursed for proper out-of-pocket expenses from the estate. Payment for their time is different: in Victoria there is no automatic entitlement to commission. Under ss 65 to 65E of the Administration and Probate Act 1958 (Vic), an executor can be paid where the Will authorises it, where the interested beneficiaries consent, or where the Supreme Court allows it. An executor seeking payment must, as soon as reasonably practicable, tell each interested beneficiary the basis and method of payment, the estimated amount and their right to ask the Court to review it, in plain language and if needed in their own language. An executor who fails to do so is not entitled to the payment.
Personal liability and conflicts of interest
An executor can be personally liable for losses caused by distributing too early, paying creditors in the wrong order, failing to provide for tax, letting property deteriorate or go uninsured, or using estate assets for their own benefit. Common conflicts in family estates include:
- An executor who is also a beneficiary. This is common and permitted, but the executor must act for all beneficiaries, not themselves, when deciding on sales, valuations and timing.
- An executor or relative living in the estate property. Rent, outgoings and the timing of sale should be addressed early and in writing. See beneficiaries in occupation of estate property.
- Buying an estate asset. An executor should not buy estate property without the informed consent of all beneficiaries or the Court’s approval.
- Loans and claims by the executor against the estate need clear evidence and transparency with the other beneficiaries.
Renouncing or reserving leave
Being named as executor does not oblige you to act. Before you take any step that amounts to acting (intermeddling) in the estate, you can sign a renunciation. Where several executors are named, one can apply while the others have leave reserved to apply later, which is useful where a co-executor lives overseas or is unavailable. Once you have taken out the grant, you generally cannot simply resign; a court application may be needed.
Cross-border points: executors and assets overseas
- Executors living overseas can apply in Victoria. The affidavit must be sworn before a person authorised to take it where the executor is, often an Australian consular officer or a notary public, which can take weeks to arrange.
- Appointing an attorney in Australia to apply for a grant on the executor’s behalf is often more practical when the executor lives in China, Hong Kong, Taiwan, Singapore or Malaysia.
- Documents: overseas death certificates and other records may need certified translation and, depending on the country, notarisation or an apostille.
- Overseas assets: some Commonwealth jurisdictions allow an Australian grant to be resealed; others, including mainland China and Taiwan, have their own succession processes. Plan for delays and currency movements, and for tax in both countries.
- Overseas beneficiaries raise tax questions, including CGT where assets pass to a foreign resident, and practical issues with identity checks and transfers.
Common mistakes
- Distributing within the family provision period, or before tax is finalised.
- Paying creditors or relatives before checking whether the estate is solvent.
- Mixing estate money with personal money, or paying estate costs in cash without records.
- Letting a family member live in the property rent-free without agreement from the other beneficiaries.
- Assuming super, life insurance and jointly held assets follow the Will.
- Claiming commission without the Will, beneficiary consent or the Court’s approval.
When to get a lawyer or a professional executor
Many straightforward Victorian estates are handled by family executors. Legal advice is worth obtaining where the estate may be insolvent, a family provision claim is threatened, beneficiaries are in dispute, there is a family business, trust or self-managed super fund, there are overseas assets or beneficiaries, or the executor lives overseas. If no family member is able or willing to act, consider a professional executor.
How we can assist
We advise executors at each stage of an estate: probate applications, solvency and creditor issues, family provision exposure, estate accounts and distribution, commission, and coordinating with overseas executors, beneficiaries and advisers in Asia. We also work with accountants on the estate’s tax position.
Related reading
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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