Beneficiary Rights During Estate Administration in Victoria

What a beneficiary's right really is

On death, the deceased's estate passes to the personal representative. Sections 13 and 14 of the Administration and Probate Act 1958 (Vic) vest real estate in the executor or administrator, who holds it for the purposes of administration. While administration is under way, a beneficiary ordinarily has a right to due administration of the estate, not ownership of any particular asset.

Before anyone is paid, the estate's assets must be collected and applied to funeral and administration expenses, debts, tax, other liabilities and any proper claims. The executor controls that process, subject to the will, the Act, their fiduciary duties (duties of loyalty and good faith owed to the estate and its beneficiaries) and the supervision of the Supreme Court. Our guide to executor duties in Victoria and the executor's guide to estate administration explain the executor's side of that process.

A beneficiary generally cannot:

• direct that an asset be sold, kept or transferred;
• choose the selling agent, the sale method or the timing;
• compel an immediate transfer of an asset in their favour;
• veto a transaction the executor has power to make; or
• demand distribution merely because they disagree with the pace or a commercial decision.

A beneficiary generally can:

• require the estate to be administered properly and according to the will or intestacy rules;
• seek information and intelligible accounts proportionate to their interest;
• ask the Court to enforce the executor's duties where they are not being performed; and
• receive their entitlement once it has been ascertained and the estate is in a position to pay it.

Once administration is complete and a beneficiary's entitlement is fixed, the position changes. An executor who then holds property for a beneficiary may hold it as trustee, and a beneficiary absolutely entitled to a fixed share can press more directly for payment or transfer.

Types of beneficial interest

Information and accounting rights vary with the kind of interest a beneficiary holds. Not every beneficiary has the same rights to the same documents.

• Residuary beneficiaries share what is left after debts, tax, expenses and other gifts. Because every receipt and payment affects their share, they usually have the strongest claim to full estate accounts.
• Specific beneficiaries receive a particular asset, such as a car or shares. Their main interest is that the asset is preserved and transferred.
• Pecuniary beneficiaries receive a set sum. Their concern is whether the estate can pay it in full and when it will be paid. For specific and pecuniary beneficiaries, information rights are often narrower than a residuary beneficiary's, but may extend to broader estate information where solvency, abatement, expenses, delay, interest or loss affecting the gift is in issue.
• Life beneficiaries receive the income or use of property during their life, with the capital passing to others afterwards. They need information about income; the remainder beneficiaries need information about capital.
• Contingent beneficiaries take only if a future event occurs, such as reaching a stated age. They have a real but limited interest in the property being protected.
• Minor beneficiaries cannot give a valid receipt; their share is usually held on trust until they reach the relevant age, and a parent or guardian may act for them in seeking information.
• Charitable beneficiaries have the same general rights as other beneficiaries of the same class of gift.
• Intestacy beneficiaries take under the statutory distribution rules in the Administration and Probate Act 1958 (Vic) where there is no valid will disposing of the property. Their position is broadly like that of residuary beneficiaries.

Getting a copy of the will

Section 50 of the Wills Act 1997 (Vic) requires a person who has possession and control of a will, revoked will or purported will of a deceased person to allow the following people to inspect and make copies of it at their own expense:

• any person named or referred to in the will, whether as a beneficiary or not;
• any person named or referred to as a beneficiary in any earlier will;
• the testator's spouse at the date of death, and any domestic partner;
• any parent, guardian or child of the deceased;
• any person who would be entitled to a share if the deceased had died intestate;
• any parent or guardian of a minor referred to in the will or who would share on intestacy; and
• any creditor or other person with a claim at law or in equity against the estate who produces evidence of that claim.

Four distinctions matter in practice:

• Before the grant, section 50 operates against whoever holds the will, commonly the executor or the deceased's solicitor.
• After the grant, the will and the grant are Court records. A copy of the will is attached to the grant. Documents on the probate file may be obtained through the Probate Office records-search process, subject to the Court's current access requirements and fees. Not every filed document is necessarily obtainable, and an executor is not obliged to send every beneficiary every filed document.
• The will is not the whole file. Section 50 does not extend to drafts, the will-maker's instructions, file notes, letters of wishes or the deceased's solicitor's file, which are governed by separate principles of confidentiality and privilege.
• A named beneficiary is different from a person who expected to benefit. Someone left out of a will may still fall within s 50 (for example as a child or an intestacy beneficiary), but that does not make them a beneficiary of the will.

Information and accounts

An executor has a legal duty to keep proper records and to be ready to account for their administration. Section 28 of the Administration and Probate Act 1958 (Vic) requires a personal representative, when lawfully required, to exhibit on oath or affirmation in the Court a true and perfect inventory and account of the deceased's estate. The general law gives beneficiaries corresponding rights to information, which vary with their interest. The categories below are best seen as a scale, from information almost every beneficiary can expect to material that may properly be withheld.

1. Notice of the interest. A beneficiary should be told, within a reasonable time, that they have an interest under the will or on intestacy.
2. Reasonable progress information. Whether a grant has been sought or made, what major steps remain and a realistic estimate of timing.
3. The identity and broad status of assets and liabilities. What the estate holds, what it owes, and whether assets have been collected, sold or are being held.
4. The inventory filed with the grant. A Victorian application includes an inventory of assets and liabilities. It is a snapshot at the date of application, not an account of later dealings.
5. Estate accounts. Accounts showing capital, income, receipts, payments, liabilities, distributions and the proposed balance for distribution. These are particularly important to residuary beneficiaries, whose share depends on every entry.
6. Supporting documents. Bank statements, sale documents, invoices and other vouchers where reasonably required to understand or verify the accounts.
7. Information about a particular entitlement. A specific or pecuniary beneficiary's entitlement is often narrower than a residuary beneficiary's: whether the asset is safe, whether the estate can pay the legacy in full, and when payment or transfer will happen. It may extend to broader estate information where solvency, abatement, administration expenses, delay, interest, loss or another matter affecting the gift is genuinely in issue.
8. Tax information. Information about estate income and tax returns that affects the beneficiary's share or their own tax position, such as their share of estate income or the cost base of an asset they receive.
9. Testamentary trust documents. Where an interest continues in a trust after administration, trust beneficiaries have ongoing, but still proportionate, information rights.
10. Material that may properly be withheld. Documents irrelevant to the beneficiary's interest, information confidential to another person, and privileged legal advice (see below).

Requests should be proportionate to the beneficiary's interest and the stage of administration. A request for a full account in the first weeks after death will often be premature; the same request once assets have been sold and the estate is ready to distribute is usually reasonable.

Rights at a glance

Administration accounts through the Court

Rule 6.03 of the Supreme Court (Administration and Probate) Rules 2023 allows the Court or the Registrar, at any time, to require an executor or administrator to file a true and just account of the administration, verified by affidavit. The account must give full particulars of receipts, disbursements, all assets and liabilities (including those not known when the grant was sought) and the distribution of all assets. If the executor fails to file it, the Registrar may apply to the Court, which may remove the executor or make another order.

In practice:

• an interested party completes the Supreme Court's request for administration account form and sends it to the Probate Office with copies of any granted application documents they hold, such as the affidavit, inventory and will;
• the Registrar will typically only make a request where the interested party has already taken reasonable steps to obtain an account directly from the executor and the Registrar is satisfied there is a reason for it;
• in deciding whether to act, the Registrar can be expected to weigh the interests of the estate and beneficiaries against the cost and inconvenience involved;
• if required, the executor completes the Court's administration account form and exhibits it to an affidavit of verification.

An administration account is useful, but it is not an automatic audit, and it may not resolve every contested question of fact or equity. Where an account is incomplete, or reveals a loss, proceedings may still be needed for production of documents, payment, relief for breach of duty or other orders.

Privilege and confidentiality

Beneficiaries often ask to see the estate solicitor's file. There is no blanket entitlement to it. Legal professional privilege protects confidential communications made for the dominant purpose of legal advice or litigation, and whether a beneficiary can see particular advice depends on the facts:

• Who was the client? The executor, not the beneficiaries, is ordinarily the solicitor's client.
• What was the advice for? Advice obtained for the administration of the estate for the benefit of all beneficiaries may stand differently from advice about the executor's personal exposure, defence of a claim against them or a conflict between their interest and the estate's.
• Who paid? Payment from estate funds is relevant but does not, by itself, conclusively decide whether a beneficiary may inspect the advice.
• Whose information is it? Confidential information about another beneficiary or a third party may need protection even where it is relevant.

Privilege is a shield for particular communications, not a reason to refuse accounting. An executor cannot rely on a global assertion of privilege to avoid giving proper accounts or basic information about the administration.

Timing, updates and distribution

Neither the Administration and Probate Act 1958 (Vic) nor the Court's rules sets a fixed timetable for updates or distribution. The traditional executor's year is a guide to what is ordinarily a reasonable period to get in the estate. It is not a statutory moratorium on distribution and not an automatic entitlement to be paid at the end of it. Simple estates may finish earlier; complex estates may properly take longer.

It helps to distinguish three periods: time from death to the grant, time from the grant to realisation of the assets, and time from realisation to final distribution. Delay at each stage has different causes. Legitimate sources of delay include obtaining the grant, collecting or selling assets, foreign assets, lodging tax returns and waiting for assessments, creditor claims, missing beneficiaries, litigation, family provision risk, continuing trusts and assets that are difficult to sell.

Our experience handling Victorian estates indicates the following, as practical observations rather than guarantees:

• in an uncomplicated estate without a dispute, tax complication or difficult asset, an interim distribution may be possible approximately 4–6 weeks after the grant, if an adequate reserve is retained and the risk of claims has been assessed;
• an uncomplicated estate can sometimes be fully administered within approximately three months after the grant;
• an estate involving the sale of a Victorian home may realistically take approximately 6–8 months from death to final distribution; and
• tax, property, creditor and claim issues may require longer.

Unexplained inactivity is different from justified delay. A beneficiary is entitled to ask what is holding the estate up and when the next step is expected. Where delay causes loss, our guide on estate administration delays and executor liability explains when an executor may be personally liable.

Two statutory protections for executors also affect timing. A notice under s 33 of the Administration and Probate Act invites creditors and claimants to give notice of their claims before the executor distributes; our guide to notices of intended distribution explains how it works. Family provision timing is governed by ss 99 and 99A of the same Act, discussed below.

Interim distributions

An interim distribution is a part-payment before the estate is finalised. No beneficiary has an automatic right to one. Before making any distribution the executor must retain enough to meet debts, tax, costs, possible claims, contingencies and the cost of completing the administration.

• Beneficiaries may offer an indemnity (a promise to repay if the money is later needed). An indemnity can reduce risk, but it does not make an improper distribution proper, and it does not bind creditors, claimants or the ATO, who are not party to it.
• Unequal interim distributions, for example paying one residuary beneficiary before others, need careful justification and must be brought into account at the end.
• Every distribution should be documented, with a receipt and a record of what remains.
• Where administration is substantially advanced and the reserve is plainly sufficient, a refusal to distribute without explanation may warrant inquiry. Whether the Court would intervene remains fact-specific.

The tax and risk questions an executor must address before paying early are covered in our guide on distributing an estate before tax is finalised.

How different gifts are paid

• Specific gifts. The asset passes to the beneficiary when the executor assents to the gift or transfers it, which the executor will not usually do until satisfied the asset is not needed to pay debts. Until then the executor must look after it.
• Pecuniary legacies. A legacy is paid in money once the estate can safely pay it. Depending on the will and the circumstances, a legacy may carry interest if payment is delayed beyond the time the law treats as reasonable. There is no single universal rate, and the will may provide otherwise.
• Residuary shares. The residue is only known once everything else has been paid or provided for. That is why complete and intelligible accounts matter most to residuary beneficiaries.
• Income during administration. Interest, rent and dividends earned after death belong to the estate and may have tax consequences for the estate or for beneficiaries. Our estate tax guides deal with the detail.
• In-specie transfers. Where an asset is transferred instead of sold, it must be valued properly so that each beneficiary receives the correct share, and tax and duty consequences considered.
• Abatement. If the estate is not large enough to pay every gift, gifts are reduced (abate) in the order set by the will or the law.
• Insolvent estates. If debts exceed assets, creditors are paid first under the statutory priority rules. Beneficiaries cannot insist on payment ahead of creditors.
• Minor and contingent beneficiaries. Their shares are generally held on trust until they reach the stated age or the contingency occurs.
• Life interests and ongoing trusts. The executor, or a trustee, continues to manage the property and must account to both the life beneficiary and those entitled afterwards.
• After final distribution. Final distribution does not extinguish the executor's duty to account, a beneficiary's ability to seek appropriate final accounts, or remedies for an earlier breach. However, once property has been paid out, tracing it, reconstructing the administration and achieving practical recovery can be more difficult, so concerns are best raised before the final distribution.

Where a beneficiary cannot be found, see our guide to missing beneficiaries in a deceased estate.

Executor commission and fees

Being appointed executor does not by itself entitle a person to be paid. The Administration and Probate Act 1958 (Vic) sets out the framework:

• Section 65 allows the Court to grant commission that is just and reasonable, not exceeding 5%, for the executor's pains and trouble.
• Section 65A allows the Court, on the application of an interested beneficiary, a creditor or of its own motion, to order that excessive commission or fees, or excessive costs, expenses or disbursements reimbursed to the executor, be reduced or repaid to the estate. It does not apply to State Trustees.
• Section 65B governs when a remuneration clause in the will actually entitles the executor to be paid. Separately, under section 49A of the Wills Act 1997 (Vic) a remuneration clause is void unless the will-maker gave written informed consent to its inclusion before executing the will. Section 49A concerns the validity of the clause itself; it does not affect the separate pathways of Court-allowed commission (s 65) or informed beneficiary consent (s 65C).
• Section 65C allows an executor to be paid with the informed consent of each interested beneficiary where there is no effective remuneration clause. It does not apply to trustee companies.
• Section 65D requires an executor who seeks to be paid to tell each interested beneficiary, as soon as reasonably practicable and in plain language, the basis of payment, how it is calculated, its estimated value and their right to have it reviewed by the Court, and to update them if the amount is likely to change substantially. In Re the Estate of Diana Noelle Whiteman (deceased) [2024] VSC 793 an application for commission under s 65 was refused where the Court was not satisfied the requirements of s 65D had been complied with.
• Section 65E allows an executor, where the will provides for commission, to elect instead to charge fees for executorial services, but only if the fees are less than the commission would have been, are not calculated by reference to the executor's specialist professional skills and are kept distinct from fees for professional services.

Work done by a lawyer or accountant in a professional capacity is different from executorial work, and charging for each depends on its own authority. Trustee companies and State Trustees operate partly under separate statutory regimes, so the rules above should not be assumed to apply to them in the same way. Our guide can an executor be paid in Victoria? explains remuneration in detail.

Conflicts, sales and warning signs

Disagreeing with an executor's commercial judgment is not the same as proving a breach of duty. The following, however, are warning signs that justify closer questions and, often, advice:

• undisclosed conflicts between the executor's interests and the estate's;
• purchase of estate property by the executor or an associate;
• a sale substantially below a properly supported value;
• unauthorised use of estate money;
• selective payments or distributions to some beneficiaries;
• failure to insure, maintain or secure assets;
• unexplained legal or professional costs;
• mixing estate money with personal funds; and
• refusal to account.

For the legal tests, see our guides to an executor's fiduciary duties, selling estate property without beneficiary consent and challenging an executor's decisions. Where co-executors cannot agree, see when co-executors cannot agree.

Practical escalation path

Most information problems are resolved without Court proceedings. A proportionate sequence is:

1. Identify your legal interest and the exact information or payment you need.
2. Make a focused written request with a reasonable response date.
3. Obtain the grant, will, inventory and any other available Court records, from the executor or, after the grant, through the Probate Office records search (subject to the Court's access requirements and fees).
4. Have a solicitor send a letter identifying the executor's duty, the missing information and the proposed next step.
5. Consider asking the Registrar to require an administration account.
6. Consider mediation or a negotiated timetable for accounts and distribution.
7. Where necessary, seek Court orders for accounts, production of documents, due administration or payment.
8. Seek urgent orders to preserve assets, including an injunction, where assets are threatened.
9. Pursue equitable compensation, tracing (following estate money into what it was used for) or recovery where loss has occurred.
10. Seek removal and replacement only where the evidence and seriousness justify it.

Judicial advice or directions, where the Court tells an executor or trustee how to act, is ordinarily sought by the executor or trustee, not by a beneficiary. A beneficiary may ask the executor to seek advice, and may be heard on the application, but a beneficiary's own remedies are the steps above.

Get advice urgently if estate assets may be sold, transferred, dissipated or distributed. Once money leaves the estate, recovery becomes harder and more expensive.

Who pays the costs

• Proceedings are not automatically paid from the estate. Costs are in the Court's discretion.
• An executor is generally entitled to an indemnity from the estate for costs properly incurred, but may lose it and be ordered to pay costs personally where their conduct is improper.
• A beneficiary who brings unnecessary or disproportionate proceedings may be ordered to pay the other side's costs.

Removal and replacement

Section 34 of the Administration and Probate Act 1958 (Vic) allows the Court to discharge or remove an executor or administrator who remains out of Victoria for more than two years, desires to be discharged, refuses or is unfit to act, or is incapable of acting, and to appoint a replacement. The Court also has power under the Trustee Act 1958 (Vic) to replace trustees.

Removal is protective, not punitive. The central concerns are the due administration of the estate and the welfare and protection of the beneficiaries. Persistent failure to account, prolonged unjustified delay, hostility that damages the administration, disobedience of Court orders, serious conflict, dissipation of assets or gross dereliction of duty may support removal. Friction, disagreement, delay or conflict alone is not automatically sufficient. Removal is serious, expensive and discretionary. Our guide can an executor be removed in Victoria? explains the test and procedure.

Complaints about a solicitor

The Victorian Legal Services Board + Commissioner deals with complaints about lawyers' conduct and legal costs within its jurisdiction. It does not administer estates, compel distribution, replace executors or decide most beneficiary disputes. Where a solicitor is also the executor, not everything they do as executor becomes a legal-services matter. Costs review, and Court remedies against an executor, may be separate processes. A complaint is not a substitute for timely action where estate assets or rights are at risk.

Family provision claims

Enforcing beneficiary rights and making a family provision claim are different things. A claim under Part IV of the Administration and Probate Act 1958 (Vic) asks the Court to make provision, or further provision, for an eligible person from the estate. The claimant need not already be a beneficiary.

• Section 99(1): an application must be made within six months after the grant.
• Section 99(2)–(4): the Court may extend that time, but only on an application made before final distribution of the estate, and a distribution made before the extension application is not disturbed by it.
• Section 99A is a separate protection for personal representatives, not a general embargo on distribution or a simple “six-month rule”. In broad terms, it protects distributions properly made for the maintenance, support or education of a dependent partner or child (s 99A(1)); distributions properly made after a person of full legal capacity has given written consent or notified in writing that they do not intend to apply (s 99A(2)); and distributions properly made after six months from the grant in the circumstances s 99A(3) specifies, including where no written notice of an application or intended application has been received. A written notice of intention must meet s 99A(4)'s requirements and lapses after three months unless an application is made. Section 99A does not extend the s 99 time limit.

Eligibility and the merits of a claim are covered in our guide to making a family provision claim in Victoria.

Frequently asked questions

Official sources

• Administration and Probate Act 1958 (Vic)
• Wills Act 1997 (Vic)
• Trustee Act 1958 (Vic)
• Supreme Court (Administration and Probate) Rules 2023
• Supreme Court of Victoria: Request for administration account
• Supreme Court of Victoria: Administration account forms
• Victorian Legal Services Board + Commissioner

How we can help

Our probate and estate administration team advises beneficiaries and executors across Victoria on information requests, estate accounts, distribution timing and, where necessary, Supreme Court applications. A clearly framed request, made early, often resolves concerns before litigation becomes necessary.