An executor in Victoria is responsible for administering a deceased person’s estate in accordance with their Will. This can involve identifying and protecting estate assets, dealing with debts and liabilities, determining whether a Grant of Probate is required, collecting and managing assets after the grant, and ultimately distributing the estate to beneficiaries.
Being named as an executor does not mean every estate will follow exactly the same process. The assets involved, how they are held and the terms of the Will can all affect what needs to happen. For executors who are uncertain about their responsibilities, Warlows Legal’s Wills, Trusts and Estates lawyers provide advice tailored to the circumstances of the estate.
What Is an Executor Responsible for in Victoria?
An executor is usually the person a testator names when they create a Will, appointing someone they trust to carry out their wishes after they die. The role extends beyond obtaining probate. An executor may need to collect and preserve assets, identify liabilities, deal with organisations holding estate property, maintain appropriate records and distribute the remaining estate according to the Will.
The Supreme Court of Victoria explains that where there is a valid Will, the executor named in it will usually apply for probate and deal with the estate. The person responsible for administering the estate must also pay estate debts and distribute the remaining assets according to the Will.
This article concerns estates where there is a valid Will and an executor has been appointed. Where someone dies without a valid Will, different intestacy rules apply, and an eligible person may instead need to apply for Letters of Administration.
Locate the Will and Establish What Is in the Estate
One of an executor’s first tasks is to locate the original Will and any codicils and establish the assets and liabilities of the estate.
Depending on the circumstances, assets may include real property, bank accounts, shares, investments, vehicles, business interests and personal property. Liabilities might include mortgages, loans, credit cards, outstanding accounts and taxation obligations.
Executors should also be aware that not every financial interest necessarily forms part of the deceased estate. Superannuation death benefits, for example, may be dealt with separately depending on the circumstances and the requirements of the superannuation fund.
The executor should also take reasonable steps to protect estate assets while administration is underway. This may involve securing property, checking appropriate insurance remains in place, notifying relevant financial institutions and arranging for valuable personal property to be stored safely.
Does Every Executor Need to Apply for Probate?
No. Being named as an executor does not automatically mean a Grant of Probate will be required.
A Grant of Probate is issued by the Supreme Court of Victoria and confirms that the Will is the deceased’s last valid Will and that the executor has authority to administer the estate.
Whether a grant is required can depend on the value and type of assets, how those assets are held and the requirements of banks, Land Use Victoria and other organisations. For example, some assets may be dealt with without a grant, while a grant is required where the executor needs to prove their title to particular estate assets.
Establishing whether probate is necessary is therefore an important step before proceeding with a Court application.
What Does Applying for Probate Involve?
Where probate is required, applications in Victoria are made through the Supreme Court’s RedCrest-Probate system.
The executor will generally need the original Will and any codicils, the relevant death certificate and details of the deceased’s assets and debts. Before filing the probate application, the executor must also publish a notice of intention to apply.
Under the Supreme Court of Victoria’s current probate application process, the notice must be published at least 15 days before the application is filed. The process then involves preparing the required affidavit and inventory of assets and liabilities, filing the application and providing the original Will and any other required material to the Probate Office.
If information is incomplete or issues arise with the Will or application, the Probate Office may request further information before a grant is issued.
What Happens After Probate Is Granted?
Obtaining the Grant of Probate does not complete the executor’s responsibilities. Where a grant is required, it provides the executor with the authority needed to deal with estate assets and continue the administration.
The executor can provide the grant details to relevant asset holders and then collect and manage estate assets, pay outstanding debts and deal with property or investments in accordance with the Will and applicable law. The Supreme Court identifies collecting and managing assets, paying outstanding debts and distributing what remains as part of administering the estate after a grant.
Taxation may also need to be considered. Depending on the deceased’s circumstances and income earned by the estate during administration, tax returns or other taxation matters may need to be addressed. The Australian Taxation Office provides guidance on when a deceased estate trust tax return may be required.
Keep Clear Records While Administering the Estate
Estate administration can involve money moving in and out of the estate over an extended period. Executors should therefore maintain clear records of assets collected, expenses and liabilities paid, property sold or transferred and distributions ultimately made to beneficiaries.
Good record keeping helps maintain transparency throughout the administration and provides a clear account of how estate property has been managed.
Where there are multiple beneficiaries, complex assets or questions about expenses and distributions, obtaining legal advice before taking significant steps can also help the executor understand their obligations.
When Can the Executor Distribute the Estate?
A Grant of Probate does not necessarily mean the estate should immediately be distributed.
Before transferring the remaining assets to beneficiaries, the executor should ensure relevant estate liabilities and administration expenses have been addressed and consider any outstanding taxation matters, potential claims or other issues affecting the estate. The terms of the Will must then be followed when making the final distributions.
Premature distribution can create difficulties if a valid debt or claim emerges after estate assets have already been transferred. Executors should therefore consider the circumstances of the estate before finalising distributions rather than treating the grant itself as the end of the administration process.
When Should an Executor Seek Legal Advice?
Some estates can be relatively straightforward, while others involve questions about the Will, difficult-to-identify assets, property transactions, competing beneficiary interests, potential claims or uncertainty about an executor’s authority.
The Supreme Court’s Probate Office can provide information about the probate application process, but it cannot provide legal advice or assist with administering the estate after the grant has been issued.
Warlows Legal can assist executors with probate and deceased estate administration in Victoria, including understanding their responsibilities, preparing a probate application and navigating issues that arise while administering and distributing the estate.
If you have been appointed as an executor and are unsure what steps you need to take, speak with Warlows Legal for advice about your responsibilities and assistance with probate and estate administration in Victoria.
The information in this article is general in nature and does not constitute legal advice. Probate and estate administration requirements can vary depending on the Will, estate assets and individual circumstances. Executors should obtain legal advice specific to the estate before taking action.
