Why the ATO May Ask for Probate Before Discussing a Deceased Estate

The ATO's Privacy Obligations

The ATO is bound by strict secrecy and privacy obligations under tax law and the Privacy Act 1988. Tax information includes income, deductions, refunds, debts, employer details, superannuation contributions and bank interest records — much of it more sensitive than a person's bank statements. The ATO cannot release that information to anyone who simply rings up claiming to be an executor.

What the ATO needs to see is evidence of a person's role, and ultimately evidence of legal authority to stand in the shoes of the deceased. There is an important distinction between three different things: telling the ATO that someone has died; the ATO noting that a person is managing the deceased's tax affairs on the strength of the Will; and the ATO recognising a person as the authorised legal personal representative with full authority over the estate's tax affairs.

Notification, Management and Full Authority — Three Different Steps

It helps to separate what can happen at each stage of dealing with the ATO:

• Notifying the ATO of the death. This is the formal step of telling the ATO that a person has died, using the ATO's current online notification form with an identity check at a participating Australia Post outlet, or a paper form posted with certified copies of supporting documents. Processing can take up to 28 days.
• Being recorded as managing the tax affairs. Before a grant has been obtained, the ATO may use the Will to verify a person's role and note that they are managing the deceased's tax affairs. This is not the same as recognising that person as the authorised legal personal representative, and legal restrictions on the release of information and funds continue to apply.
• Recognition as the authorised legal personal representative. Full, unrestricted authority to deal with the deceased's tax affairs is generally only recognised once a grant has issued — a grant of probate for an executor named in a valid Will, or letters of administration for an administrator where there is no Will or no executor able to act.

What Information the ATO May Request

Before discussing a deceased person's affairs, the ATO will typically ask for:

• proof of the death — usually an official death certificate;
• evidence of the person's role — such as the Will naming them as executor — and, for full authority, a grant of probate or letters of administration;
• identification of the person themselves, including ATO proof-of-record-ownership questions; and
• where a tax, BAS or legal practitioner is involved, evidence that they have been appointed by the authorised legal personal representative and that the ATO's notification and declaration requirements have been met.

How Executors Establish Authority

The first formal step in dealing with the ATO is usually the deceased estate notification. This can currently be done using the ATO's online notification form together with an identity check of supporting documents at a participating Australia Post outlet, or by posting a paper form with certified copies of supporting documents. Processing can take up to 28 days. The notification informs the ATO of the death and is generally the first step before the ATO will discuss the estate's tax affairs.

Notification alone does not resolve the deceased's tax position — it does not, for example, complete the date-of-death tax return or address any tax owed by the estate itself. Those are separate steps that follow once the appropriate authority has been established.

Probate and the Authorised Legal Personal Representative

Before a grant is produced, the ATO may accept the Will as evidence of a person's role and note that they are managing the deceased's tax affairs. This can allow some limited dealings to progress. However, it is not the same as being recognised as the authorised legal personal representative with full access to tax records and funds — legal restrictions on the release of information and on the payment of amounts owing continue to apply until a grant has been obtained.

For an executor named in a valid Will, unrestricted recognition as the legal personal representative generally requires a grant of probate from the Supreme Court. Where there is no valid Will, or no executor able or willing to act, an administrator instead requires letters of administration. Whether a grant is ultimately needed for a particular estate depends on the assets involved, the amounts at stake, and the requirements of each institution the estate deals with — including the ATO, banks, share registries and superannuation funds.

Access to the Deceased Estate Data Package

Once a person is recognised as the authorised legal personal representative, or a representative has been validly nominated, the ATO can make available a deceased estate data package. As described by the ATO, this currently covers specified tax and superannuation information for the previous three income years, together with current payroll information, to help fill gaps in the deceased's records. A tax, BAS or legal practitioner engaged by an executor who has not yet obtained probate does not automatically gain access to this package; access depends on appointment by the authorised legal personal representative and on meeting the ATO's notification and declaration requirements.

Difficulties Commonly Encountered

• Lost Will. Without the original Will, the ATO may decline to note anyone as managing the deceased's tax affairs until a Court order has been obtained admitting a copy or informal document.
• Outdated tax records. The deceased's last tax return may have been lodged years ago, with addresses, contact details and bank account information that are no longer current.
• Disputes between executors. Where multiple executors are appointed and disagree, the ATO may require all executors to act together or for the dispute to be resolved by the Court before it will deal with the estate.
• Overseas executors. Executors who live outside Australia often face additional verification steps and longer timeframes.
• Audits in progress. An open audit at the date of death does not stop on death; it continues, with the authorised legal personal representative dealing with the ATO on the estate's behalf.

Steps Executors Can Take to Minimise Delays

1. Notify the ATO of the death promptly using the online notification form and identity check, or the paper notification process.
2. Apply for probate or letters of administration where full authority over the estate's tax affairs is needed, having regard to the assets, refunds or liabilities involved.
3. Once authorised, consider engaging a registered tax agent or accountant to deal directly with the ATO on the estate's behalf.
4. Where eligible, obtain the deceased estate data package from the ATO to help fill gaps in the deceased's records.
5. Keep careful records of every interaction with the ATO, including dates, reference numbers and the name of the officer.

Documents to Gather Before Contacting the ATO

• original death certificate;
• original Will and any codicils;
• grant of probate or letters of administration (if available);
• executor's photographic identification (driver's licence or passport);
• deceased's tax file number;
• copies of the deceased's last few tax returns, notices of assessment and PAYG summaries (if available);
• recent bank and broker statements;
• superannuation fund correspondence and any binding nomination form;
• ATO correspondence relating to the deceased, including any audit notices.

When Lawyers and Accountants Should Become Involved

Most executors will benefit from involving both a lawyer and an accountant from the outset. The lawyer obtains probate, oversees administration, and protects the executor from personal liability. The accountant lodges the final return for the deceased, the estate's annual trust returns, and any objections or amendments needed. The two work together; cross-checking issues catches problems before they require ATO involvement.

Practical Tips for Dealing with the ATO After a Death

1. Lodge the deceased estate notification early. It tells the ATO of the death and helps reduce automated correspondence being sent to the deceased.
2. Understand what a grant does and does not achieve with the ATO. A grant of probate or letters of administration is what is generally required for recognition as the authorised legal personal representative with full access to tax records and funds; notification and Will-based recording do not provide that level of authority.
3. Engage a registered tax agent once authorised. Agents have established channels to the ATO, but access to the estate's records depends on appointment by the authorised legal personal representative and on meeting the ATO's requirements.
4. Centralise all ATO correspondence. Redirect mail and ensure every notice is captured — missing an ATO letter can lead to assessments by default or to lost objection rights.
5. Wait until tax is finalised before distributing. Once funds have left the estate, recovering them to meet an unexpected tax liability can be difficult and may fall on the executor personally.

Related Reading

• Probate & Estate Administration
• Wills & Estate Planning
• Tax Returns for Deceased Estates: What Executors Need to Know
• Who Pays Tax on Estate Income in Australia?
• When Is an Estate Income Tax Return Required?
• When Does a Deceased Estate End for Tax Purposes?
• CGT in Deceased Estates: Common Executor Mistakes
• Dividend Reinvestment Plans and Deceased Estates: CGT
• Taxation of Testamentary Trusts Explained
• Can an Executor Distribute an Estate Before Tax Is Finalised?
• Lost Share Certificates in Deceased Estates
• Private Company Shares in Deceased Estates
• Deceased Estates and Cryptocurrency Holdings

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