Information Centre · Probate & Deceased Estates
Notices of Intended Distribution: Statutory Protection for Executors in Victoria
Section 33 of the Trustee Act 1958 (Vic) provides a personal-liability protection for trustees, personal representatives and persons who have applied for a grant who distribute after giving the required advertisements and allowing a claim period of not less than two months. This guide summarises how section 33 works, its statutory limits, and how it sits alongside the separate protections in section 99A of the Administration and Probate Act 1958 (Vic) that address family provision risk.
Key points
- Section 33 of the Trustee Act 1958 (Vic) allows a trustee, personal representative or person who has applied for a grant to give the notices required by the section and to call for claims within a period of not less than two months.
- Publication requirements are set by section 33 and the Second Schedule; they contemplate publication in the Government Gazette and in a daily newspaper published in Melbourne, with additional district-newspaper notice where the statutory land or radius condition applies.
- The protection is against liability for property distributed at a time when the personal representative had no notice of the claim; section 33(3) preserves known claims and any right to follow property (or property representing it) into the hands of a person other than a purchaser.
- Section 33 does not itself excuse required searches or official certificates, does not deal with ATO obligations, and does not address family provision risk — Part IV is a separate regime.
- Family provision timing is dealt with by section 99 of the Administration and Probate Act 1958 (Vic), subject to the Court's extension power on the conditions the section sets.
- Section 99A of the Administration and Probate Act 1958 (Vic) provides distinct protections for the personal representative: subs (1) for properly made maintenance/support/education distributions; subs (2) for a distribution as against a person of full legal capacity who has given written consent or a written no-intention statement; subs (3) for a properly made distribution made after six months from the grant, either where no notice of an application has been received or where a compliant written notice of intention has been given and no written notice that an application has been made is received within the section's three-month period; subs (4) requires the intention notice to be in signed writing, which lapses after three months unless an application is made and cannot be renewed; subs (5) sets further limits and section 99A does not extend the section 99 application period.
The Executor's Distribution Risk
A personal representative is exposed to personal liability if the estate is distributed while claims remain unpaid or unresolved and no adequate retention or protection is in place. Two distinct statutory frameworks address related but separate risks:
- section 33 of the Trustee Act 1958 (Vic), which addresses claims (such as creditors) of which the personal representative had no notice at the time of distribution; and
- sections 99 and 99A of the Administration and Probate Act 1958 (Vic), which address the timing of, and specific protections in respect of, family provision claims under Part IV.
These are separate regimes with separate conditions. Compliance with one does not confer the protection of the other.
What Section 33 Does — and Does Not Do
Section 33 allows a trustee, personal representative or person who has applied for a grant to give the notices required by the section calling for claims within a period of not less than two months. After that period, distribution may be made having regard to the claims (formal or otherwise) of which the trustee or personal representative then has notice. The protection under the section is against liability for property distributed where the trustee or personal representative did not, at the time of distribution, have notice of the claim.
Section 33(3) preserves the position of persons whose claims the personal representative did have notice of. It also preserves any right to follow property (or property representing it) into the hands of a person who received it, other than a purchaser. Section 33 does not itself excuse the personal representative from enquiries or from obtaining any search or official certificate required in the particular administration.
Publication Requirements
Section 33 and the Second Schedule to the Trustee Act 1958 (Vic) set out the current publication requirements for the notices. In summary they contemplate publication in the Government Gazette and in a daily newspaper published in Melbourne and, where the statutory land or radius condition applies, in a newspaper published in the district in which the relevant land is situated, together with such other like notices as are appropriate to the particular case. The current text of the section and Schedule should be checked before advertising.
Contents of the Notice
- the deceased's full name and any aliases;
- the deceased's date of death and last address;
- identification of the trustee or personal representative and the address for claims;
- a claim period of not less than two months from the date of the last of the required notices.
Section 99 and Section 99A — a Separate Regime
Part IV of the Administration and Probate Act 1958 (Vic) is a separate framework. Section 99 provides a general six-month period from the date of the grant for commencing a family provision claim, subject to the Court's power to extend on the conditions the section sets, including the consequences where final distribution has occurred. Section 33 of the Trustee Act does not itself protect a personal representative from a Part IV claim.
Section 99A of the Administration and Probate Act 1958 (Vic) sets out distinct protections for the personal representative:
- section 99A(1) — protection for properly made distributions for the maintenance, support or education of persons for whom the deceased might reasonably have been expected to make provision;
- section 99A(2) — protection as against a person of full legal capacity who has notified the personal representative in writing consenting to the distribution or stating that the person does not intend to make an application affecting it;
- section 99A(3) — protection for a properly made distribution made after six months from the grant, either where no notice of an application has been received, or where a compliant written notice of intention has been given and no written notice that an application has been made is received within the three-month period referred to in the section;
- section 99A(4) — the notice of intention must be in signed writing, lapses after three months unless an application is made, and cannot be renewed;
- section 99A(5) — further limits on the reach of the section; section 99A does not extend the section 99 application period.
The current text of section 99A should be checked and applied to the facts of the estate.
For more on family provision see the companion family provision claims in Victoria and how to make a family provision claim guides.
Interim Distributions and Beneficiary Indemnities
Whether an interim distribution is appropriate is a matter for the personal representative on the facts, having regard to known and contingent liabilities, tax, potential Part IV claims and retentions. A written beneficiary indemnity is a contractual arrangement between the beneficiary and the personal representative and depends on the beneficiary's solvency; it is not itself section 33 or section 99A protection. Where the issues are complex, judicial advice under the Trustee Act may be considered.
What Section 33 Does Not Address
Section 33 does not answer:
- Part IV family provision risk — that is dealt with under section 99 and section 99A of the Administration and Probate Act 1958 (Vic);
- ATO obligations of the deceased or the estate;
- claims of which the personal representative did have notice at the time of distribution;
- the personal representative's own breach of duty — see the companion fiduciary duties guide.
Related Guides
See executor duties in Victoria, estate administration delays and executor liability, distributing before tax is finalised and probate in Victoria.
Frequently Asked Questions
What is a notice of intended distribution under section 33?
Section 33 of the Trustee Act 1958 (Vic) allows a trustee, personal representative or person who has applied for a grant to give the notices required by the section, calling for claims within a period of not less than two months from the date of the last of the notices. After the expiry of that period, the trustee or personal representative may distribute the property having regard to claims (formal or otherwise) of which the trustee or personal representative then has notice. The protection under the section is against being liable for property distributed where the trustee or personal representative did not, at the time of distribution, have notice of the claim.
What limits does section 33 have on its face?
Section 33(3) preserves the position of persons whose claims the trustee or personal representative did have notice of, and preserves any right to follow property (or property representing it) into the hands of a person who received it, other than a purchaser. Section 33 does not itself excuse a personal representative from making enquiries or obtaining any search or official certificate required in the particular administration. It does not affect Part IV of the Administration and Probate Act 1958 (Vic) or ATO obligations.
How long must the notice period be?
Section 33 requires the notice period to be not less than two months from the date of the last of the required notices. A longer period may be appropriate depending on what is known about creditors, business dealings, tax and potential claimants. The two-month period is a statutory minimum, not a target.
How is the notice published?
Section 33 and the Second Schedule to the Trustee Act 1958 (Vic) set out the current publication requirements. In summary they contemplate publication in the Government Gazette and in a daily newspaper published in Melbourne and, where the statutory land or radius condition applies, in a newspaper published in the district in which the relevant land is situated, together with such other like notices as are appropriate to the particular case. The current text of the section and Schedule should be checked before advertising.
How does section 33 interact with a Part IV family provision claim?
Part IV of the Administration and Probate Act 1958 (Vic) is a separate regime. Section 99 provides a general six-month period from the date of the grant for commencing a family provision claim, subject to the Court's power to extend on the conditions set by the section. Section 33 of the Trustee Act does not extend, limit or replace those provisions.
What are the section 99A protections when distributing the estate?
Section 99A of the Administration and Probate Act 1958 (Vic) sets out separate protections for a personal representative. Section 99A(1) protects properly made distributions for the maintenance, support or education of persons for whom the deceased might reasonably have been expected to make provision. Section 99A(2) protects a distribution as against a person of full legal capacity who has notified the personal representative in writing consenting to the distribution or stating that the person does not intend to make an application affecting it. Section 99A(3) protects a properly made distribution made after six months from the grant, either where no notice of an application has been received, or where a compliant written notice of intention has been given and no written notice that an application has been made has been received within the three-month period referred to in the section. Section 99A(4) requires the notice of intention to be in signed writing; the notice lapses after three months unless an application is made, and it cannot be renewed. Section 99A(5) sets further limits and does not extend the section 99 application period. The section's text should be checked in each estate.
What if I do not give a section 33 notice?
A section 33 notice is not compulsory. Distributing without one means the personal representative does not obtain the specific protection the section confers against claims of which the personal representative had no notice at the time of distribution. Whether this exposure matters, and to what extent, depends on the estate.
Can I make interim distributions before the notice period expires?
Whether an interim distribution is appropriate is a matter for the personal representative on the facts, having regard to known liabilities, contingent liabilities, tax, potential Part IV claims and the beneficiary's position. A written beneficiary indemnity is a contractual arrangement between the beneficiary and the personal representative; it is not itself protection under section 33 or section 99A and its practical value depends on the beneficiary's solvency.
What if a creditor comes forward after distribution?
Section 33 protects the personal representative to the extent set by the section in respect of property distributed at a time when the personal representative had no notice of the claim. The section does not extinguish the underlying claim; the creditor may still be able to pursue the property (or property representing it) in the hands of a recipient other than a purchaser. Records of the notices, responses and distributions are important to any later reliance on the section.
Are section 33 and section 99A a substitute for identifying liabilities?
No. Both sections operate alongside — not instead of — the personal representative's obligations to identify liabilities, deal with tax, make appropriate enquiries and searches, and retain appropriate amounts for known contingencies. The sections address specific risks; they do not answer the whole question of safe distribution.
How Parke Lawyers Can Help
Parke Lawyers' Probate & Estate Administration team acts for Victorian personal representatives on notices of intended distribution and the statutory protection available under section 33 of the Trustee Act 1958 (Vic), together with related probate and estate administration work. Engage us early so notice periods, claim windows and distribution timing are properly coordinated before any distribution is made.
Probate & Deceased Estates
Considering distribution of an estate?
Parke Lawyers advises Victorian personal representatives on section 33 notices, the interaction with sections 99 and 99A of the Administration and Probate Act 1958 (Vic), and the specific facts of the estate.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.