Executor Duties and Responsibilities in Victoria

What Does an Executor Do?

At its simplest, an executor is the person appointed by a Will to administer the deceased's estate and give effect to the Will. Once probate is granted, the executor is the estate's legal personal representative. The role generally involves:

• Locating the original Will and obtaining the death certificate;
• Identifying and securing the estate's assets;
• Identifying and confirming the estate's liabilities;
• Applying to the Supreme Court of Victoria for a grant of probate where one is required;
• Collecting the assets and paying debts, tax and administration expenses;
• Maintaining proper accounts and records of the administration;
• Communicating with beneficiaries through the process;
• Responding to claims made against the estate, including family provision claims; and
• Distributing the estate in accordance with the Will once it is safe to do so.

The executor acts as a fiduciary. In practical terms, that means acting honestly, in good faith and in the interests of the estate and those entitled to it; avoiding conflicts between personal interests and the estate; not making an unauthorised profit from the role; and treating beneficiaries even-handedly according to the terms of the Will. In Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178, Deane J described the two themes of the fiduciary rule: a fiduciary must account for a benefit obtained where personal interest and duty conflict (or where there is a significant possibility of conflict), and for a benefit obtained by use of the fiduciary position. Those duties apply even where the executor is also a beneficiary — which is very common.

The Supreme Court of Victoria has recently restated some of the most basic executor responsibilities. In Nemler-Aquilina v Mercader [2025] VSC 595 (Moore J) at [19]–[21], the Court said that a basal function of an executor is to distribute the estate in accordance with the testamentary instructions, and that an executor is not at liberty to alter that distribution without the consent of all adult beneficiaries with full capacity or an order of the Court. The Court also criticised the executor's failure to give prompt and proper responses to beneficiaries' reasonable requests for information.

Legal Duty or Good Practice?

Much executor guidance mixes legal requirements with sensible habits. The distinction matters, because failing to follow a legal requirement can create personal exposure, while departing from a practice recommendation usually does not on its own. As a broad guide:

• Legal requirements include administering the estate according to the Will and the law; paying debts in the order the law requires (including the bankruptcy rules for an insolvent estate under s 39 of the Administration and Probate Act 1958 (Vic)); producing an inventory and account when lawfully required (s 28); complying with the court rules when applying for a grant; meeting the estate's tax lodgement obligations; observing the conditions for payment of commission or fees (ss 65–65E); and avoiding unauthorised conflicts and profits.
• Strongly advisable steps that are not compulsory in every estate but give important protection include publishing statutory notices to creditors and claimants under s 33 of the Trustee Act 1958 (Vic), waiting until the family provision position is clear before distributing, and obtaining written confirmation that tax obligations are complete.
• Good practice includes a separate estate bank account, regular written updates to beneficiaries, photographing contents, keeping a decision log and obtaining independent valuations before selling or transferring significant assets.

Accepting or Renouncing the Role

Being named in a Will does not oblige a person to act. An executor who does not want the role can renounce probate. On renunciation, their rights as executor wholly cease and the administration proceeds as if they had not been appointed (s 16(1) of the Administration and Probate Act). The Court may later permit a renouncing executor to withdraw the renunciation and prove the Will (s 16(2)), but that requires the Court's permission.

The decision should be made early. An executor who starts dealing with estate assets as though they are acting in the role may be treated as having accepted it, which can make a later renunciation more difficult. Where an executor is willing to act but cannot do so immediately, the alternatives include allowing a co-executor to prove with power reserved to the non-proving executor (s 18) or appointing an attorney to apply. See what happens when an executor refuses to act for the options when a named executor will neither act nor renounce.

Immediate Steps Following Death

In the first one to two weeks, an executor's focus is orientation and stabilisation, not legal process. Practical priorities typically include:

1. Locate the original Will. Check the deceased's solicitor's safe custody, home safe, bank deposit box and personal papers. The original — not a copy — is ordinarily required for probate, and the original should not be unstapled, marked or altered. Look for any later Will or codicil; a later document may revoke all or part of an earlier one.
2. Confirm your appointment. Read the Will carefully. Identify any co-executors, alternative executors, testamentary trusts, and the powers the Will gives the executor.
3. Check that the Will is still effective. Under the Wills Act 1997 (Vic), marriage generally revokes an earlier Will unless it was made in contemplation of that marriage (s 13), and divorce generally revokes gifts to, and most appointments of, the former spouse unless it appears the testator did not want that result (s 14), in each case subject to the detailed exceptions in those provisions. The ending of a relationship can also have other effects that need advice. Where the only document is informal or unsigned, the Supreme Court may still admit it in some circumstances, but that requires an application and evidence.
4. Liaise with the funeral director. The funeral director usually arranges registration of the death; the formal death certificate is issued by Births, Deaths and Marriages Victoria, and timing varies.
5. Notify immediate family and named beneficiaries of the death, in coordination with other family members. Government agencies, banks, utilities and other organisations also need to be told; the free Australian Death Notification Service, available once the death is registered, can notify several participating organisations at once. Keep a list of who has been notified and when.
6. Secure the deceased's home and personal effects. Change locks if appropriate; move cash, jewellery and identity documents to a secure location; arrange for ongoing utilities and any pets.
7. Take initial legal advice. A short early consultation can save months later — particularly if the Will is unusual, the estate is complex, or a dispute is likely.

Funeral Arrangements

Victorian courts treat the executor named in the Will as having the right, and the responsibility, to arrange the burial or cremation of the deceased's body if the executor is ready, willing and able to do so. In Eastern Health v Bruinink [2022] VSC 772 (Incerti J) the Court applied that principle (citing Re Ghosh [2022] VSC 410 and the principles collected in Smith v Tamworth City Council (1997) 41 NSWLR 680), noting that the rule is not absolute. Because the named executor was not ready or able to act, the Court authorised others to arrange the disposal. Disposal must be carried out respectfully and with regard to religious and cultural considerations, and serious family disagreements may need an urgent court application.

Funeral and burial wishes in a Will should be given respectful weight, but under the general law they are not legally binding: see the Victorian Law Reform Commission's Funeral and Burial Instructions report. Separate legislation deals with some cremation questions.

Reasonable funeral expenses are paid from the estate. In a solvent estate, s 39A of the Administration and Probate Act sets the order in which estate property is applied towards funeral, testamentary and administration expenses, debts and liabilities, subject to any contrary intention in the Will. In practice, many banks will pay a funeral director's invoice from the deceased's account before a grant on production of the invoice and supporting documents, but each institution applies its own process. An executor who pays reasonable funeral costs personally is ordinarily entitled to be reimbursed from the estate.

Identifying Assets and Liabilities

An executor must build a complete picture of what the deceased owned and owed at the date of death. This usually involves:

• Reviewing recent bank statements, tax returns and superannuation member statements;
• Searching titles for any real estate held in the deceased's name;
• Contacting share registries (commonly Computershare and MUFG Corporate Markets) and the deceased's stockbroker;
• Notifying superannuation funds and life insurers;
• Reviewing personal papers for term deposits, bonds, managed funds, loans to family members and overseas assets;
• Confirming credit card balances, mortgages, personal loans, tax debts and utility accounts;
• Identifying assets that may pass outside the Will — jointly held property, superannuation and some life insurance — and interests in family trusts or companies, which are controlled by their own documents;
• Obtaining valuations of significant assets, including real estate, shares, vehicles, art and jewellery.

The resulting inventory is the foundation of the probate application and of later decisions in the estate. The probate rules require the application to include an inventory of the estate so far as the Registrar requires, and s 28 of the Administration and Probate Act requires the executor to exhibit a true inventory and account when lawfully required. For asset classes that commonly cause difficulty, see our guides on lost share certificates in deceased estates, private company shares in deceased estates and deceased estates and cryptocurrency holdings.

Protecting Estate Assets

Until the assets are distributed, the executor is responsible for taking reasonable care of them. Loss caused by neglect can be recovered from an executor personally, and s 31D of the Administration and Probate Act preserves liability for waste or conversion of an estate even after a personal representative dies. Common steps include:

• Insurance: notify the insurer of the death; check the terms that apply to an unoccupied home (many policies restrict cover after a period of vacancy); maintain motor vehicle cover.
• Security: change locks where appropriate; redirect mail to the executor; cancel unused subscriptions and recurring direct debits.
• Maintenance: ensure the home, garden, pool and any rural property continue to be maintained; avoid deterioration that erodes value.
• Investment management: an executor's role is to preserve value prudently, not to speculate. Subject to the Will, s 6 of the Trustee Act 1958 (Vic) requires a trustee exercising a power of investment to use the care, diligence and skill a prudent person would exercise in managing the affairs of other persons (a higher standard applies to professional trustees), and to review trust investments at least once a year; s 8 lists matters to consider, such as the purposes of the trust, the needs of beneficiaries, diversification and risk. Cash needed for debts and tax should not be tied up, and advice should be obtained before changing significant investments.
• Documentation: photograph the contents of the home before anything is removed; retain originals of valuable documents in a secure location; record who has keys. Our article on cleaning out a deceased estate covers the practical risks of clearing a home too early.

Applying for Probate

A grant of probate is the Supreme Court's confirmation that the Will is valid and that the executor has authority to administer the estate. Whether a grant is needed depends on the assets and the requirements of the institutions holding them. Real estate in the deceased's sole name, or held as a tenant in common, ordinarily requires a grant before it can be dealt with. See acting as executor without probate for when a grant may not be needed.

Under r 2.03 of the Supreme Court (Administration and Probate) Rules 2023, an application cannot be made unless a notice of the applicant's intention to apply has been posted on the Court's RedCrest-Probate system not less than 14 days before. The Court's guide to applying for a grant and the RedCrest help page treat this as allowing filing 15 days or more after advertising, so in practice the application is filed on the 15th day after posting or later. Under r 2.02.1 the original Will must be filed in the Registrar's office within 28 days after the application is submitted on RedCrest-Probate. Under r 6.02, if a first application is made more than three years after the death, the delay must be explained by affidavit. The application includes an inventory of assets so far as the Registrar requires (r 2.04). Fees and processing times change, so check the Court's current information before filing. For the procedure in more detail, see probate in Victoria and how long probate takes.

A person who has a genuine basis to object to a grant — for example, a concern about the deceased's capacity or a later Will — can lodge a caveat with the Probate Office, which stops a grant being made while it is in force. If a caveat is lodged, the application stalls until it is resolved, and the executor should take advice rather than continue with the application as if nothing has happened. See probate caveats in Victoria.

Dealing with Banks

On notification of the death, each bank applies its own deceased-estate process, which typically involves:

• Restricting the deceased's sole accounts to prevent unauthorised transactions;
• Cancelling debit and credit cards and stopping pending direct debits;
• Providing a date-of-death balance for the probate inventory;
• Releasing funds to pay the funeral invoice and certain limited estate expenses on production of supporting documents;
• Releasing the balance in accordance with the bank's own release criteria — commonly requiring a grant for larger balances, and sometimes accepting a Will, death certificate and indemnity for smaller balances.

These institutional requirements are distinct from the statutory position under s 31A of the Administration and Probate Act 1958 (Vic), which permits certain holders of money or personal property not exceeding the indexed threshold — $34,310 on and from 1 July 2026 (indexed annually and subject to change) — to pay or transfer without production of a grant. This is not a limit on total estate value and does not apply to land. Section 31A does not compel any particular institution to release funds, and does not prejudice the rights of a person otherwise entitled against the recipient.

A joint account may pass to the surviving account holder by survivorship depending on the account terms and the bank's process; it is not universally automatic. The executor should confirm the position with the bank and obtain a date-of-death balance where relevant for tax purposes.

Dealing with Property

For real estate, the executor's responsibilities depend on how the property was held:

• Sole ownership or tenancy in common: the deceased's interest forms part of the estate and ordinarily cannot be transferred or sold without a grant. After the grant, the executor can be registered on title by a transmission application at Land Services Victoria and can then sell the property for the estate or transfer it to the beneficiary entitled under the Will.
• Joint tenancy: the deceased's interest generally passes to the surviving joint owner by survivorship, outside the estate. The survivor normally records the death on title through a survivorship application at Land Services Victoria; no grant is needed for that step.

Executors selling real estate should obtain proper valuations, consider capital gains tax implications and keep beneficiaries appropriately informed about timing and method of sale. A sale conducted without proper valuation or process can attract criticism and, in some cases, personal exposure. An executor who wants to buy an estate asset personally faces a serious conflict of interest and should obtain independent legal advice before taking any step towards the purchase. Do not assume that a fair price or agreement from some beneficiaries resolves the conflict; the proposed transaction and any necessary authority require specific assessment. See our guide on whether an executor can sell estate property without beneficiary consent.

On transfer duty, s 42 of the Duties Act 2000 (Vic) provides that no duty is chargeable on a transfer from the executor to a beneficiary that is not for valuable consideration and is made under and in conformity with the Will (or in satisfaction of the beneficiary's entitlement), subject to the section's terms. Transfers that depart from the Will, or where one beneficiary pays others to take a property, may be treated differently and should be checked before they are documented.

Land tax. Transfer duty, land tax, vacant residential land tax and capital gains tax are separate taxes with separate rules. According to the State Revenue Office's guidance on deceased estates and land tax (under the Land Tax Act 2005 (Vic)):

• Concessionary period. From the date of death, estate land held by the personal representative is taxed at general land tax rates, not the higher trust surcharge rates, until the earlier of the third anniversary of death (or a longer period the Commissioner approves in exceptional circumstances, while administration is incomplete) and completion of the administration. If administration is not complete by the end of that period, the surcharge rate applies.
• The deceased's home. Land that was the deceased's principal place of residence can remain exempt from death until the earlier of the third anniversary of death and the date the deceased's interest vests in a beneficiary or testamentary trustee. The exemption is not available in some cases (for example, where the deceased held only a right to reside or life interest), and from 1 January 2026 it does not apply if income is derived from the land, other than from a part used for a substantial business activity or from a separate residence such as a rented granny flat. Renting out the home can therefore end the exemption.
• "Completion" can come early. For land tax purposes the SRO treats administration as complete on events including completing everything except distribution, an interim distribution showing the estate can meet its debts, first assenting to a transfer of estate land, completing final accounts, or beginning to hold land on a continuing trust (such as where a beneficiary takes possession under a right to reside). Once complete, the concessionary period cannot be extended. An executor who keeps land after that point holds it as trustee, generally at surcharge rates unless the beneficiaries are notified or a sole trustee is also the sole beneficiary.
• Notifications. The personal representative must lodge a commencement notice within one month of the grant and a completion notice within one month of completion of the administration; failing to notify can attract penalty tax. Trust notification rules can also apply to a continuing trust.
• Vacant residential land tax. This is a separate annual tax on Victorian residential homes vacant for more than 6 months in the previous calendar year, with a notification due by 15 February. The SRO's exemptions list includes land that is exempt from land tax (which can include a deceased's home within its concessionary period), land that changed ownership in the previous year, and a holiday-home exemption that can continue after death in limited circumstances. An exemption generally has to be applied for after notifying, so an empty estate home should be checked each January.

Foreign beneficiaries or trustees can also raise absentee owner surcharge issues. Land tax outcomes turn on dates and facts, so check the SRO position before deciding whether to rent out, retain or sell estate land, and before the third anniversary of death.

Dealing with Superannuation

Superannuation does not automatically form part of the estate. It is held in trust by the fund trustee and paid in accordance with the fund's governing rules and the superannuation legislation. The destination of a death benefit depends on:

• Whether the deceased made a binding death benefit nomination, and whether that nomination was valid and effective at death under the fund's rules;
• Whether the nomination was in favour of an eligible dependant or of the legal personal representative (the executor);
• If there is no binding nomination, how the trustee exercises its discretion under the fund's rules and the law.

The executor's task is to engage with the fund early, provide the documents requested and — where the benefit is paid to the estate — bring the proceeds into the estate accounts. An executor who is also a potential recipient of the benefit personally faces a conflict that should be managed with advice. Tax depends on whether the ultimate recipient is a death benefits dependant for tax purposes, which is not the same test as dependency under the superannuation rules. See superannuation death benefit disputes.

Paying Debts and Giving Creditor Notices

Debts of the deceased are payable out of the estate before beneficiaries receive their entitlements. The executor should identify all creditors, obtain payout figures, check whether any debt is disputed and pay valid debts in the order required. In a solvent estate the order in which assets are used is set by s 39A (subject to the Will); in an insolvent estate s 39 applies the bankruptcy rules, or the estate may be administered under the Bankruptcy Act 1966 (Cth).

Section 33 of the Trustee Act 1958 (Vic) gives important protection. An executor, or a person who has applied for a grant, may advertise their intention to distribute and require anyone interested to send particulars of their claim within a time fixed in the notice of not less than two months (s 33(1)). The notice is published in the Government Gazette and a Melbourne daily newspaper, and also in a local newspaper where the estate includes land more than 80 kilometres from Melbourne; a simplified publication rule applies to very small estates (s 33(2)). When the time fixed by the notice expires, the executor may distribute having regard only to the claims, formal or not, of which they then have notice, and is not liable, for the property distributed, to a person of whose claim they had no notice (s 33(3)). The protection has limits: it does not defeat claims the executor already knows about, it does not prevent a claimant following the property into the hands of a recipient other than a purchaser, and it does not remove the obligation to make the searches a prudent purchaser would make. It is also separate from the family provision rules discussed below. See notices of intended distribution and statutory protection.

Tax Obligations

The executor is responsible for the deceased's outstanding tax affairs and for the estate's own tax position. In practical terms:

• Date-of-death return: the ATO's final tax return guidance explains when a return for the period from 1 July to the date of death is required. If one is not required, the ATO asks to be told by a non-lodgment advice. Outstanding returns for earlier years must also be dealt with.
• Estate (trust) returns: according to the ATO's guidance on when and how to lodge returns for a deceased estate, for each of the first three income years a trust return is required if the estate's net income exceeds the individual tax-free threshold, a beneficiary is presently entitled to estate income at the end of the year, or a beneficiary is not an Australian tax resident. From the fourth income year, a return is required if the estate earns any income, including capital gains. The first income year starts the day after death and ends on the next 30 June. The ATO notes that finalising an estate typically takes 6 to 12 months but can take longer. See when an estate tax return is required and who pays tax on estate income.
• Capital gains tax: Division 128 of the Income Tax Assessment Act 1997 generally allows assets to pass to beneficiaries without an immediate CGT event, with the beneficiary inheriting the relevant cost base. A sale by the executor, however, can produce a gain taxed in the estate. For an inherited dwelling, the ATO's inherited property guidance explains that the same exemption is available to the trustee of a deceased estate, and that one route to a full exemption requires (among other conditions) a disposal under a contract that settles within 2 years of death, which may be extended in exceptional circumstances. Foreign residency and the deceased's use of the property can change the result. See CGT in deceased estates: common executor mistakes.
• Foreign-resident beneficiaries (CGT event K3): the Division 128 rollover is displaced in one important case. Under s 104-215 of the Income Tax Assessment Act 1997, CGT event K3 happens if an asset the deceased owned passes to a beneficiary who, when the asset passes, is a foreign resident (or an exempt entity or the trustee of a complying superannuation entity). For a foreign-resident beneficiary it applies only if the deceased was an Australian resident just before death and the asset is not taxable Australian property in the beneficiary's hands. Australian real estate is ordinarily taxable Australian property, so K3 most often affects assets such as listed shares and units. The event is taken to happen just before death: any gain (market value at death less cost base) belongs in the deceased's date-of-death return, and assets acquired before 20 September 1985 are excluded. Because "passes" is assessed when the asset passes, check each beneficiary's residency before transferring assets, and take tax advice before distributing to anyone living overseas.

The ATO's page on confirming tax obligations are complete says that all tax obligations should be met, or fully provided for, before a final distribution, and that an executor may be personally liable for tax not paid before the estate is finalised, up to the value of the estate assets they held or should have held. Its practical compliance guideline PCG 2018/4 applies only to the deceased person's own tax (not the estate's post-death tax). For less complex estates meeting its conditions — including a grant, no business, discretionary trust income or SMSF membership in the four years before death, limited asset types and a total value under $10 million — it explains when the executor can distribute without waiting for the full amendment period. Where an estate is insolvent, the ATO states that the executor is generally not required to deal personally with the shortfall. See whether an executor can distribute before tax is finalised and when a deceased estate ends for tax purposes.

Family Provision (TFM) Claims

Part IV of the Administration and Probate Act allows an eligible person to apply to the Supreme Court or County Court for a family provision order where the deceased did not make adequate provision for their proper maintenance and support (ss 90A, 91). These claims were previously called testator's family maintenance (TFM) claims.

"Eligible person" is defined in s 90. In summary, it covers a spouse or domestic partner at death; a child or stepchild (with separate categories for those under 18, full-time students aged 18 to 25 and those with a disability, and for other children and stepchildren); a person treated by the deceased as a natural child; certain former spouses or domestic partners whose Family Law Act property claim was prevented by the death; a registered caring partner; a grandchild; the spouse or domestic partner of a child who dies within a year of the deceased; and a member of the deceased's household. For registered caring partners, grandchildren, a child's surviving partner and household members, the Court must be satisfied that the applicant was wholly or partly dependent on the deceased (s 91(2)(b)). In every case the Court must also find that the deceased had a moral duty to provide for the applicant and that the estate fails to make adequate provision (s 91(2)(c)–(d)).

The executor's position in a claim is important. The executor is usually the defendant, but their role is to protect the estate and place relevant evidence before the Court, not to fight for one side of the family. An executor who is also a beneficiary must take care to keep the two roles separate.

On costs, Part IV no longer contains a special costs rule: the former costs provisions in s 97 were repealed in 2014, and s 97 now deals with the contents and effect of a family provision order (including that, unless the Court orders otherwise, the burden of an order is shared rateably among the beneficiaries: s 97(2)). In the Supreme Court, costs are in the Court's discretion under s 24 of the Supreme Court Act 1986 (Vic), unless legislation or the rules provide otherwise, and the Court's practice in this list should be checked with advice for the particular claim. An executor who defends a claim properly in that capacity is ordinarily indemnified from the estate for their costs, but that indemnity can be lost for improper conduct (see the removal discussion below). Merely being unsuccessful in litigation does not, by itself, deprive an executor of that ordinary indemnity. See family provision claims in Victoria and defending a family provision claim.

Timing of Distribution

Three separate rules frequently get blended together. They should be kept distinct:

• The executor's year (s 49). A personal representative is not bound to distribute before one year from the death. This protects an executor from pressure to distribute too early. It is not a deadline for finishing the estate.
• The family provision time limit (s 99). A family provision application must be made within 6 months after the date of the grant. The Court can extend that time, even after it has expired, but an extension application must be made before final distribution, and an extension does not disturb distributions already made before the extension application.
• Executor protection (s 99A). No action lies against an executor for a distribution properly made after 6 months from the grant if the executor has not had notice of a family provision application or, if a written notice of intention to apply was given, no application was notified within 3 months of that notice. A notice of intention must be in writing signed by the eligible person or their lawyer, lapses after 3 months unless an application is made, and cannot be renewed. Section 99A also protects proper distributions made for the maintenance, support or education of a dependent partner or child, and protects a proper distribution against a proceeding by a particular person of full legal capacity who has notified the executor in writing that they consent to it or do not intend to make an application affecting it (s 99A(2)).

Section 99A does not extend the time for bringing a claim and is not a general permission to distribute early. In practice, an executor should not make a final distribution until the creditor notice period has expired, the 6-month family provision period has passed without a claim or unexpired notice, and tax obligations have been dealt with or adequately provided for. Small interim distributions can sometimes be made sensibly where ample funds are retained, but that decision should be made with advice.

Interest on cash gifts (pecuniary legacies). Holding back is not cost-free for every beneficiary. In a solvent estate, s 39B(3) of the Administration and Probate Act gives a beneficiary entitled to a pecuniary legacy a right to interest on any part of it not paid within 12 months of the death, for the period it remains unpaid after those 12 months, at the "legacy interest rate". That rate is defined in s 3(1) as 2% above the Reserve Bank cash rate last published before 1 January of the calendar year in which interest begins to accrue, so it changes from year to year and must be calculated for the particular estate. The Will's terms, the source of the gift and any court order can affect the position, so check them before calculating. Separately, s 39B(1)–(2) generally require pecuniary legacies to be paid from residue, and to abate proportionately if residue is insufficient. Where an executor's year is likely to be exceeded because of a claim or sale, consider paying legacies that are safely payable, or tell legatees early that interest may be payable.

Minor beneficiaries. A person under 18 cannot generally give the executor a valid discharge for a capital entitlement, so a child's share is not simply paid to the child. Check first what the Will says: many Wills hold a child's share on trust to a stated age and give the trustee powers to pay a parent or guardian. Subject to the Will, the Trustee Act gives trustees power to apply income for a minor's maintenance, education, advancement or benefit, including by payment to a parent or guardian (s 37), and to apply capital for those purposes up to $2,000 or half the share, whichever is greater, or more with the Court's consent (s 38), with amounts brought into account against the share. The child's share must be invested and accounted for until it vests. Where no workable trust arrangement exists, take advice on the available alternatives before distributing.

From executor to trustee. Once the administration is complete — debts, tax and expenses dealt with and the residue ascertained — an executor who still holds assets (for example, a child's share or a testamentary trust fund) holds them as trustee for the beneficiaries. The duties continue but their focus changes: investing under the Trustee Act, annual review of investments, separate trust tax returns and long-term accounts. The change can also have land tax consequences (see Dealing with Property above). Where a Will appoints a different trustee of a testamentary trust, the executor transfers the trust assets to that trustee and keeps a record of what was handed over.

Communicating with Beneficiaries

Beneficiaries are entitled to an estate that is properly administered and, depending on their interest, to information about it. Communication practices can influence whether disputes arise. For more on what beneficiaries can expect, see our article on beneficiary rights during estate administration. We recommend:

• A short written update to beneficiaries within the first month, identifying the executor, confirming the administration is underway, and setting realistic expectations about timing.
• Providing beneficiaries with a copy of the Will where appropriate; once probate is granted, the proved Will is part of the Court's record.
• Periodic written updates at major milestones — grant of probate, sale of significant assets, payment of liabilities, anticipated date of distribution.
• Clear, neutral language. Avoid expressing opinions about the deceased's choices.
• A final estate account, with a summary of receipts, payments, commission or fees and proposed distributions, before any final distribution is made — often with a request that residuary beneficiaries sign an approval and release.

Records and Accounts

An executor must be able to account for the estate. Section 28 of the Administration and Probate Act requires the executor, when lawfully required, to exhibit a true and perfect inventory and account in the Court, and the Court can order an executor to bring in an inventory. Under r 6.03 of the 2023 probate rules, the Court or the Registrar may at any time require an executor to file a verified account with full particulars of receipts, disbursements, assets, liabilities and distributions, and failure to do so can lead to removal. Beneficiaries with an interest in the residue will usually expect to see accounts before final distribution. Proper records typically include:

• A dedicated estate bank account, opened in the name of the executor as legal personal representative;
• A running schedule of receipts (sale proceeds, bank balances, dividends, refunds);
• A running schedule of payments (funeral, debts, tax, professional fees, administration costs);
• Separation of income from capital, because a Will may give them to different people;
• Copies of every invoice, receipt and item of correspondence;
• Date-of-death valuations and supporting evidence for every asset;
• Minutes or emails recording decisions made by co-executors;
• A final estate account, reconciled before distribution.

Records should be retained after the final distribution, having regard to tax record-keeping requirements (generally at least five years) and the possibility of later claims.

Commission, Fees and Costs

An executor is entitled to be reimbursed from the estate for expenses properly incurred in the administration, including reasonable legal and accounting costs. Payment for the executor's own time is different and depends on the following rules in the Administration and Probate Act:

• Remuneration clause (s 65B): an executor is not entitled to payment under a clause in the Will unless the testator gave written informed consent to the clause before the Will was signed.
• Beneficiary consent (s 65C): where there is no effective clause, the executor may receive fees or commission with the informed consent of each interested beneficiary.
• Court-allowed commission (s 65): the Court may allow just and reasonable commission of up to 5% for the executor's pains and trouble. It is not an automatic 5% entitlement.
• Disclosure (s 65D): an executor who seeks to be paid must, as soon as reasonably practicable, tell each interested beneficiary the basis of payment, the method of calculation, an estimate of the amount and the beneficiary's right to ask the Court to review it, and update that information if the amount is likely to change substantially. An executor who does not comply is not entitled to commission or fees from the estate.
• Review (s 65A): the Court may reduce, or order repayment of, excessive commission, fees or claimed expenses on the application of an interested person or a creditor, or of its own motion.

In assessing commission under s 65, the Court looks at matters such as the work and judgment involved, the extent of the administration, the responsibility taken, the time the estate took, its size and capacity to pay, work done by professionals rather than the executor, and conflict or litigation in the administration. These factors, and the beneficiaries' objections, are discussed in Re Steficar [2024] VSC 560 at [27]–[29], [33]–[37] and [39]–[51]. At [35], the Court noted that 3.5% of the corpus tends to be the top of the scale in practice. That observation is not a tariff or an automatic entitlement. The award at [51] was $50,149.29: the nominal calculation was 2% less the amount attributable to legal representatives, producing an effective rate of 1.64% of the estate corpus — not an award of 2% of the corpus. Trustee companies and State Trustees are subject to separate provisions. See can an executor be paid in Victoria.

Personal Liability Risks

Executors are not ordinarily liable for the deceased's debts from their own money. Personal exposure arises from how the administration is handled. The scope of any liability is fact-specific. Common areas of risk include:

• Distributing too early. Distributing while aware of an unpaid creditor, an unresolved tax liability or a pending or notified family provision claim, or before the protections described above are available, can leave the executor personally exposed.
• Paying creditors out of order. In an insolvent estate, preferring one creditor — or paying beneficiaries — ahead of the order required by the bankruptcy rules can create personal liability.
• Failing to attend to tax obligations. Missing lodgements or overlooking an estate's tax position can lead to penalties and, where the estate has been distributed with notice of the liability, personal exposure.
• Acting on the wrong Will. Administering an invalid or revoked Will can expose the executor to claims by those entitled under the true position.
• Conflict of interest. An executor who has a personal interest in an estate asset, a debt owed to or by the deceased, or a related business must manage that conflict transparently — preferably with independent advice and, where needed, the informed consent of the beneficiaries or the Court's approval.
• Neglect and loss. Failing to insure, maintain or collect assets, or leaving funds idle for long periods without reason, can lead to claims for the loss.
• Poor record keeping. Where the executor cannot account for the assets, the Court can order them to make good the shortfall personally.
• Delay. Sustained unexplained delay can lead to removal applications and, where it causes loss, personal liability — see estate administration delays and executor liability.

Most of these risks are manageable with experienced advice and disciplined administration. Section 67 of the Trustee Act 1958 (Vic) allows the Court to relieve a trustee wholly or partly from personal liability for a breach where they acted honestly and reasonably and ought fairly to be excused, but executors should not plan on that relief in advance.

Disputes, Co-Executors and Removal

Disagreement between co-executors, or between executors and beneficiaries, is common. Where co-executors cannot agree on formal transactions, the administration can stall. Early written agreement on roles and decision-making, and prompt advice when deadlock emerges, are the most practical protections. See when co-executors cannot agree.

Section 34 of the Administration and Probate Act allows the Court to discharge or remove an executor who has obtained a grant if they remain out of Victoria for more than two years, wish to be discharged, or refuse, are unfit or are incapable of acting, and to appoint a replacement and make orders for vesting the estate, accounts and costs. A removed executor ceases to be liable for acts done after the order. In Nemler-Aquilina v Mercader [2025] VSC 595 at [13]–[16], the Court applied the leading Victorian authorities on unfitness (Monty Financial Services v Delmo[1996] 1 VR 65 and Fysh v Coote [2000] VSCA 150) and the statement of Dixon J in Miller v Cameron (1936) 54 CLR 572 that the jurisdiction is exercised with a view to the welfare of the beneficiaries. A testator's choice of executor is not lightly set aside. The Court's findings included compromising a doubtful claim against the beneficiaries' wishes without seeking judicial advice, obstructing a beneficiary and breaching court orders. At [28], the Court addressed the limits of the compromise power under s 19(1)(f) of the Trustee Act: that power does not give an executor unrestricted authority to depart from the Will's distribution of the estate. This does not mean that every proper compromise requires unanimous beneficiary consent. At [30]–[35], the Court ordered the executor to pay costs personally on an indemnity basis and denied indemnification from the estate under the impropriety exception. These are distinct consequences. The case involved serious, exceptional misconduct; an executor does not lose the ordinary indemnity for costs properly incurred merely because litigation is unsuccessful. Removal applications are expensive and discretionary; the Court generally needs evidence that the administration is being put at risk, not merely that beneficiaries dislike the executor. See can an executor be removed in Victoria and executor disputes.

Worked Example

The following example is illustrative only and simplified.

Margaret dies leaving a Will appointing her two adult children, Anna and Ben, as executors and equal residuary beneficiaries. Her estate includes her home in her sole name, a bank account, shares, and superannuation with no binding nomination. A step-child, Chris, is not a beneficiary.

• Anna and Ben locate the original Will, secure the house, notify the insurer and keep a log of every step.
• The bank will pay the funeral invoice from the account, but the house needs a grant. They post a RedCrest notice, file the probate application on or after the 15th day after posting, and deliver the original Will to the Probate Office within the required time.
• They publish s 33 notices to creditors with a two-month claim period and pay the known debts.
• The super fund trustee decides who receives the death benefit under its rules. Anna and Ben provide documents but do not treat the super as estate property unless the trustee pays it to the estate.
• Two months after the grant, Chris's lawyer sends written notice of intention to apply for family provision. Anna and Ben do not distribute the residue. If no application is made within 3 months of their receiving that notice, the notice lapses; once 6 months from the grant have passed without notice of an application, s 99A protection is available for a proper distribution.
• They sell the house after obtaining an independent valuation, obtain tax advice on the estate's position, lodge the required returns, and retain funds until the ATO has issued the assessments.
• Neither seeks commission. They prepare a final account and distribute equally between themselves after signed approvals.

Had Chris filed an application in time, Anna and Ben would have needed to hold the estate pending its resolution and take advice on their dual position as executors and beneficiaries.

Executor Duties Checklist

Timing varies widely between estates. The order below is typical, not a statutory timetable.

1. Locate the original Will and any codicils; confirm your appointment; decide whether to act or renounce.
2. Secure the home, valuables and documents; notify insurers; keep a log.
3. Arrange the funeral with family; keep invoices.
4. Identify assets, liabilities, superannuation and assets passing outside the Will; obtain date-of-death values.
5. Take legal advice on the Will, any risk of claims and whether a grant is needed.
6. Post the RedCrest notice, file the probate application and lodge the original Will within the required time.
7. If the estate owns Victorian land, lodge the State Revenue Office commencement notice within one month of the grant; diarise the third anniversary of death and, if a home stays empty, the 15 February vacant residential land tax notification.
8. Open an estate account; collect assets; maintain receipts and payments records.
9. Publish s 33 creditor and claimant notices; pay valid debts in the correct order; check for insolvency.
10. Lodge the date-of-death return and any required estate returns; check whether any beneficiary is a foreign resident (CGT event K3) and obtain tax advice on sales and transfers.
11. Monitor the 6-month family provision period and any notices of intention; respond to claims with advice.
12. If seeking commission or fees, give the s 65D information to interested beneficiaries as soon as reasonably practicable.
13. Sell or transfer property; check duty and CGT consequences before documenting transfers.
14. Track pecuniary legacies still unpaid 12 months after death (statutory interest may run) and plan how any minor beneficiary's share will be held.
15. Prepare final accounts; retain funds for outstanding tax or costs; obtain beneficiary approvals.
16. Distribute in accordance with the Will; lodge the State Revenue Office completion notice within one month of administration being completed; keep records after finalisation, including for any continuing testamentary trust.

When Professional Help is Needed

Every estate is different. While some estates are relatively straightforward to administer, executors often benefit from professional guidance to ensure their legal obligations are met and the estate is administered efficiently. Professional advice should be considered where any of the following circumstances apply:

• The estate includes real estate, a business interest, a discretionary trust or significant superannuation;
• The Will is informal, damaged, lost, ambiguous or unusually drafted;
• A family member is foreshadowing a family provision claim;
• The estate may be insolvent;
• There are minor or vulnerable beneficiaries;
• There is a blended family or estranged relative;
• The estate includes overseas assets or the deceased lived outside Victoria;
• The estate has material tax or capital gains issues;
• The executor is a beneficiary with a personal interest in an estate asset;
• The executor lives interstate or overseas;
• The executor is uncertain, time-poor, or simply does not wish to act alone.

An executor is ordinarily entitled to be reimbursed from the estate for legal costs properly incurred in obtaining advice about the administration. Costs incurred to protect a personal interest, rather than the estate, may not be.

Official Sources and Cases

• Administration and Probate Act 1958 (Vic) — Victorian Legislation
• Supreme Court (Administration and Probate) Rules 2023 (Vic) — Victorian Legislation
• Trustee Act 1958 (Vic) — Victorian Legislation
• Wills Act 1997 (Vic) — Victorian Legislation
• Supreme Court Act 1986 (Vic) — Victorian Legislation
• Supreme Court of Victoria — How to apply for a grant of probate or administration
• Victoria Government Gazette G 26 (25 June 2026), p 1490 — s 31A(2) threshold
• ATO — When and how to lodge returns for a deceased estate
• ATO — Confirming tax obligations are complete
• ATO — Inherited property and CGT
• Income Tax Assessment Act 1997 (Cth) s 104-215 — CGT event K3 (ATO legal database)
• State Revenue Office Victoria — Deceased estates and land tax
• State Revenue Office Victoria — Exemptions from vacant residential land tax
• Victorian Law Reform Commission — Funeral and Burial Instructions report, ch 2

Related Estate Administration Guides

Executors usually find it most efficient to read this guide alongside our executor's guide to estate administration, our probate in Victoria article and the probate and deceased estates FAQs. For the interaction between distribution timing, taxation and trust structures, see the tax articles linked above, including taxation of testamentary trusts.

Frequently Asked Questions