Information Centre · Probate & Deceased Estates
Probate and deceased estates FAQs in Victoria
A plain-English guide to the most common questions Victorian families, executors, administrators and beneficiaries ask about probate, letters of administration and the administration of a deceased estate.
Key points
- Probate is the Supreme Court of Victoria's formal recognition of a Will and the executor's authority to administer the estate.
- Where there is no Will, letters of administration are usually required and follow Victoria's statutory order of priority.
- Executors and administrators owe fiduciary duties — they must act in the interests of the estate and all beneficiaries.
- Reasonable funeral expenses and estate debts must generally be paid before beneficiaries receive any distribution.
- Family provision claims, executor disputes and disagreements about distributions are best addressed early with legal advice.
- Most estate administration takes between six and twelve months; complex or contested estates can take considerably longer.
The death of a family member is a difficult time, and the legal process that follows can feel unfamiliar and overwhelming. This FAQ is designed to answer the questions Victorian families ask most often when they first encounter probate, letters of administration and deceased estate administration.
It is a general guide rather than legal advice. Every estate is different, and the right course of action will depend on the particular Will (if any), the assets and liabilities involved, the family situation and the practical decisions made along the way. Where there is any doubt — and certainly where there is disagreement — early advice from an experienced estates lawyer is the safest course.
Probate and deceased estates: key concepts
A deceased estate is everything the deceased owned in their sole name at the date of death, less their liabilities. The estate is administered by the executor (if there is a valid Will) or by the administrator (if there is no Will, or no executor willing or able to act). The role is to collect in the assets, pay the debts and distribute the balance in accordance with the Will or, if none, the Victorian intestacy rules.
A grant of probate or letters of administration is the formal authority issued by the Supreme Court of Victoria that allows the executor or administrator to deal with assets held in the deceased's sole name. Some assets — such as jointly held property, life insurance with a nominated beneficiary, and superannuation paid under a binding nomination — may pass outside the estate and are not generally controlled by the Will. Our step-by-step guide on probate in Victoria explains the application process in detail.
Executors and administrators
The executor is the person named in the Will to administer the estate. The role begins on death and continues until the estate has been fully administered. Executors owe fiduciary duties — they must act honestly, in the interests of the estate as a whole, and avoid conflicts between their personal interests and their duties to beneficiaries.
An administrator performs much the same role where there is no valid Will or no executor able or willing to act. Eligibility to apply for letters of administration is set by a statutory order of priority, normally beginning with the spouse or domestic partner. Our guide on executor duties in Victoria and the broader probate and estate administration service set out the steps in more detail.
Wills, intestacy and letters of administration
A valid Will sets out who inherits and appoints the executor. If the deceased did not leave a valid Will, the estate is administered under the Victorian intestacy rules — which prescribe a fixed order of inheritance, beginning with the spouse or partner, then children, then parents, then more remote relatives. Our article on dying without a will in Victoria explains the practical consequences in more detail, and our guide to letters of administration in Victoria covers how the application is made.
In limited situations, the Supreme Court may admit an informal document as a Will — for example, a draft Will never signed, an email or a text message. These applications are technical and expensive. A properly prepared and signed Will remains far safer and cheaper for everyone involved.
Estate assets, debts and funeral expenses
Before any beneficiary receives anything, the estate must:
- identify and value all assets — real estate, bank accounts, shares, vehicles, personal possessions and any interests in trusts or businesses;
- identify all liabilities — mortgages, personal debts, tax, credit cards, funeral expenses and ongoing commitments;
- pay reasonable funeral and disposal costs (which are a first-priority charge against the estate);
- pay properly proven debts and any tax owing; and
- keep careful records of every transaction so the executor can account to beneficiaries.
Funeral arrangements raise their own legal questions about who has the right to make decisions, what wishes are binding and who pays the bill. Our article on the legal requirements for a funeral in Victoria covers those questions in detail.
Superannuation often sits outside the estate and is controlled by the trustee of the relevant fund and any valid binding nomination. The interaction between super and your Will is explained in our article on superannuation and your Will.
Beneficiaries and distributions
Beneficiaries are the people entitled to receive part of the estate. They may be entitled under the Will, under the intestacy rules, or under a successful family provision claim. Beneficiaries are generally entitled to be informed of their entitlements, to receive a copy of the relevant parts of the Will and to be kept up to date on the progress of the administration.
Distribution should not occur until the executor is satisfied that all known liabilities have been paid or properly provided for, and that any potential claims against the estate have been considered. Premature distribution is one of the most common sources of personal liability for executors.
Where beneficiaries wish to vary the way an estate is distributed — to better reflect the family's circumstances, to resolve a dispute, or for tax and asset protection reasons — a deed of family arrangement can be a useful tool. Independent legal advice is important for both the executor and each beneficiary before signing.
Disputes and contested estates
Estate disputes generally fall into one of three categories:
- Will challenges — for example, on grounds of lack of capacity, undue influence, fraud or improper execution.
- Family provision (TFM) claims — by an eligible person seeking further provision from the estate. Our guide on family provision claims in Victoria explains who can claim and the process involved.
- Executor disputes — between co-executors, or between executors and beneficiaries. These are covered in our article on executor disputes in Victoria.
Most contested estate matters resolve through negotiation or mediation rather than at a final hearing. Where litigation is unavoidable, our estate litigation and TFM claims service assists executors, administrators and beneficiaries on both sides of these disputes.
Practical checklist
Where you find yourself responsible for administering a Victorian estate, the following checklist provides a useful starting point:
- Locate the original Will and any earlier Wills.
- Arrange the funeral, taking any recorded wishes into account.
- Register the death with Births, Deaths and Marriages (usually via the funeral director).
- Obtain multiple certified copies of the official Death Certificate.
- Identify all assets and liabilities, including digital assets, superannuation and life insurance.
- Secure assets — for example, by changing locks on vacant real estate, insuring valuables and stopping ongoing direct debits.
- Determine whether probate or letters of administration are required, and apply if so.
- Pay funeral expenses, debts, tax and other liabilities from estate funds.
- Keep clear records of every receipt and payment, and communicate regularly with beneficiaries.
- Distribute the estate in accordance with the Will or the intestacy rules, only once all claims have been addressed.
Wills & estate planning context
Many of the issues that arise in deceased estate administration can be avoided — or significantly reduced — with thoughtful estate planning. Clear, current Wills, appropriate use of testamentary trusts, properly considered superannuation nominations and well-drafted enduring powers of attorney all reduce the likelihood of disputes after death. Our wills and estate planning service can help you put a robust plan in place.
Frequently Asked Questions
What is probate?
Probate is the formal recognition by the Supreme Court of Victoria that a Will is the last valid Will of the deceased, and that the executor named in it has authority to administer the estate. A grant of probate gives the executor the legal standing required to deal with assets held in the deceased's sole name, such as real estate, significant bank accounts and shareholdings.
When is probate required in Victoria?
Probate is generally required where the deceased held real estate in their sole name, or held bank funds, shares or other assets above the relevant institution's threshold. It is not always required for small estates, jointly held property or assets that pass outside the estate (such as binding superannuation nominations). Institutions set their own thresholds and may insist on probate before releasing funds.
What are letters of administration?
Letters of administration are a grant made by the Supreme Court of Victoria where there is no valid Will (intestacy) or where the named executor is unable or unwilling to act. The grant authorises a person — usually a close family member — to administer the estate in much the same way as an executor under a Will.
What happens if someone dies without a will?
Where a person dies without a valid Will (intestate), the estate is distributed under the intestacy rules in the Administration and Probate Act 1958 (Vic). The statutory order favours the spouse or domestic partner, then children, then parents, and so on. A senior next of kin will usually apply for letters of administration to deal with the estate.
What does an executor do?
An executor's role is to give effect to the Will. Core duties include locating the original Will, identifying and safeguarding assets, paying funeral expenses, debts and tax, applying for probate where required, keeping accurate records, communicating with beneficiaries and distributing the estate in accordance with the Will. Executors owe fiduciary duties to the estate and beneficiaries.
Can an executor be removed?
Yes. The Supreme Court of Victoria has the power to remove or replace an executor where there is serious misconduct, conflict of interest, incapacity, prolonged delay or other grounds that justify the Court's intervention. Removal is a significant step and the Court will usually consider whether less drastic options — such as directions, accounts or mediation — can resolve the issue first.
Who pays funeral expenses?
Reasonable funeral and disposal expenses are a first-priority charge against the deceased estate and rank ahead of most other unsecured debts. The executor or administrator pays the funeral account from estate funds when those funds are available. If a family member has paid the account personally, they are generally entitled to reimbursement, provided the expense was reasonable in the context of the estate.
Can estate debts be paid before beneficiaries receive anything?
Yes — and they usually must be. Executors are required to pay the estate's properly proven liabilities (including tax, funeral expenses and creditors) before distributing the balance to beneficiaries. Distributing too early can leave the executor personally exposed if further claims later emerge. Advertising for creditors and waiting the statutory notice period before final distribution is a key risk-management step.
How long does estate administration take?
Many Victorian estates are administered within six to twelve months. The timeline depends on the size and complexity of the estate, whether probate is required, whether assets need to be sold, the cooperation of beneficiaries, and whether any disputes or claims arise. Complex or contested estates — including those involving family provision claims — can take significantly longer.
Can beneficiaries ask for information?
Yes. Beneficiaries are generally entitled to know they are named in the Will, to receive a copy of the relevant parts of the Will and to be kept reasonably informed about the administration. They may also be entitled to an accounting from the executor at appropriate stages. Persistent failure to respond to reasonable requests can support an application to the Court for directions or, in serious cases, removal.
What happens if family members disagree?
Disagreement among beneficiaries, between co-executors, or between executors and beneficiaries is common. Many disputes can be resolved through better communication, independent accounting, mediation or a deed of family arrangement. Where matters cannot be resolved privately, the Supreme Court of Victoria can give directions, determine entitlements, or make orders about the administration of the estate.
Can a will be challenged?
A Will can be challenged on several grounds, including lack of testamentary capacity, undue influence, fraud, forgery, or that the Will was not executed in accordance with the formal requirements of the Wills Act 1997 (Vic). Separately, an eligible person may bring a family provision claim seeking further provision from the estate. Both types of dispute have strict procedural and evidential requirements.
What is a family provision claim?
A family provision claim — sometimes called a Part IV or TFM claim — is an application under the Administration and Probate Act 1958 (Vic) for further provision from a deceased estate. Only certain eligible persons (typically spouses, domestic partners, children and some dependants) can apply. Claims must usually be commenced within six months of the grant of probate or letters of administration.
When should I seek legal advice about an estate?
Early advice is generally sensible. Common triggers include being appointed executor or administrator, dealing with real estate or business assets, a Will that is unclear or contested, disputes among beneficiaries, concerns about insolvency, potential family provision claims, complex superannuation or tax issues, and uncertainty about an executor's personal exposure. Acting early usually reduces both cost and risk.
Related Reading
- Probate in Victoria: a step-by-step guide
- Executor duties in Victoria
- Letters of administration in Victoria
- Dying without a will in Victoria
- Family provision claims in Victoria
- Deeds of family arrangement in Victoria
- Executor disputes in Victoria
- Legal requirements for a funeral in Victoria
- Does your Will control your superannuation?
- Probate & estate administration
- Wills & estate planning
- Estate litigation & TFM claims
Probate & Deceased Estates · Wills & Estate Planning
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This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.