Executor Duties and Responsibilities in Victoria

What Does an Executor Do?

At its simplest, an executor is the person legally responsible for giving effect to the deceased's Will. The role generally involves:

• Locating the original Will and 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 required;
• Calling in the assets and paying liabilities, including final tax obligations;
• Maintaining proper accounts and records of the administration;
• Communicating with beneficiaries through the process;
• Distributing the residue of the estate in accordance with the Will; and
• Responding to any claims made against the estate.

The executor acts as a fiduciary — they must put the interests of the estate and its beneficiaries ahead of their own, even where they are also a beneficiary.

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 required for probate.
2. Confirm your appointment. Read the Will carefully. Identify any co-executors, alternative executors, and the scope of the powers granted.
3. Liaise with the funeral director. The funeral director will register the death and provide a preliminary notice; the formal death certificate follows from Births, Deaths and Marriages Victoria some weeks later.
4. Notify immediate family and named beneficiaries of the death, in coordination with other family members.
5. Secure the deceased's home and personal effects. Change locks if appropriate; remove cash, jewellery and identity documents to a secure location; arrange ongoing utilities and any pets.
6. Take initial legal advice. A short consultation early can save months later — particularly if the Will is unusual, if the estate is complex, or if a dispute is likely.

Funeral Arrangements

The executor — not the family generally — has legal authority over the deceased's body and is responsible for arranging the funeral. In practice the decisions are usually made together with close family, but the legal power and the legal obligation to pay funeral expenses sit with the executor.

Funeral expenses are a first-call liability of the estate and are usually paid from the deceased's bank account by the bank on production of the invoice, the death certificate and the Will — even before probate is granted. If the executor pays personally in the interim, they are entitled to reimbursement from the estate.

Where the Will records specific funeral or burial wishes, the executor should give them respectful weight, although such wishes are not strictly binding.

Identifying Assets and Liabilities

An executor must compile a complete picture of what the deceased owned and what they 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 Link Market Services) and the deceased's stockbroker;
• Notifying superannuation funds and life insurers;
• Reviewing personal papers for term deposits, bonds, managed funds and overseas assets;
• Confirming credit card balances, mortgages, personal loans, tax debts and utility accounts;
• Obtaining indicative valuations of significant chattels (motor vehicles, art, jewellery).

The resulting inventory of assets and liabilities is the foundation of the probate application and of every subsequent decision in the estate.

Protecting Estate Assets

Until the assets are distributed, the executor is responsible for keeping them safe and properly insured. Common steps include:

• Insurance: notify the insurer of the death; confirm the home is covered as an unoccupied property; 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: obtain advice before changing investment positions; an executor's duty is to preserve, not to speculate.
• Documentation: take photographs of the contents of the home; retain originals of valuable documents in a secure location.

Dealing with Banks

On notification of the death, each bank will typically:

• Freeze the deceased's accounts to prevent further transactions;
• Cancel debit and credit cards and stop pending direct debits;
• Provide a date-of-death balance for inclusion in the probate inventory;
• Release funds to pay the funeral invoice and certain limited estate expenses on production of supporting documents;
• Release the balance of the account on production of the grant of probate (or, for small accounts, on a signed indemnity).

Joint accounts pass automatically to the surviving joint owner and are not frozen. The executor should still ask the bank to update the account name and provide a date-of-death balance for the deceased's half-interest if 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 cannot be transferred or sold without a grant of probate. After the grant, the executor is registered on title and can transmit the property to the named beneficiary or sell it for the estate.
• Joint tenancy: the deceased's interest passes automatically to the surviving joint owner by survivorship, outside the estate. A simple Survivorship Application is lodged with Land Use Victoria.

Executors selling real estate must obtain proper valuations, consider capital gains tax implications and consult beneficiaries on timing and method of sale. A hasty sale at a low price can attract personal criticism — and, on rare occasions, personal liability.

Dealing with Superannuation

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

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

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. Tax treatment of death benefits varies between dependant and non-dependant beneficiaries and warrants specific advice in most cases.

Communicating with Beneficiaries

Beneficiaries are entitled to know that the estate is being administered, although not to detailed accounts of every decision. Most executor disputes we see are not caused by the substance of the administration but by a lack of communication. We recommend:

• A short written update to beneficiaries within the first month, identifying the executor, confirming the administration is underway, and setting expectations about timing.
• Provision of a copy of the Will to those entitled to receive one.
• 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 and proposed distributions, before any final distribution is made.

Record Keeping

An executor must keep complete records of the administration. Beneficiaries and, in the event of any dispute, the Court are entitled to see them. 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);
• Copies of every invoice, receipt and item of correspondence;
• Date-of-death valuations and supporting evidence for every asset;
• Minutes of any decisions made by co-executors;
• A final estate account, reconciled and signed before distribution.

These records should be retained for at least seven years after the final distribution.

Personal Liability Risks

Executors can be personally liable where the administration is mishandled. The most common risks are:

• Distributing too early. Distributing before the six-month family provision window has closed can leave the executor personally liable if a successful claim is later made and the estate has been dissipated.
• Failing to pay tax. The executor must lodge the deceased's final personal tax return and an estate income tax return for each year the estate remains undistributed. Unpaid tax can be recovered personally.
• Acting on a defective Will. Administering an invalid or revoked Will exposes the executor to claims by those who would have benefited under the true position.
• Conflict of interest. An executor who also has a personal interest in an estate asset must manage that conflict carefully — preferably with independent advice.
• Poor record keeping. Where the executor cannot account for the assets, the Court can order them to make good any shortfall personally.

Most of these risks are entirely manageable with experienced advice and disciplined administration. They are only catastrophic where they are ignored.

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;
• There are minor or vulnerable beneficiaries;
• There is a blended family or estranged relative;
• The estate includes overseas assets;
• The estate has material tax or capital gains issues;
• The executor lives interstate or overseas;
• The executor is uncertain, time-poor, or simply does not wish to act alone.

An executor is also entitled, in appropriate cases, to be indemnified out of the estate for properly incurred legal costs of obtaining advice.

Frequently Asked Questions