Information Centre · Probate & Deceased Estates
Probate and deceased estates FAQs in Victoria
Practical answers for Victorian executors, administrators, beneficiaries and families — from the first days after a death to the grant, debts, distribution, claims and tax. General information only, current as at 30 September 2026.
Key points
- An executor's office arises from the Will on death and a grant of probate proves it to third parties; an administrator's authority arises only from the grant of letters of administration.
- No universal dollar threshold decides whether a grant is needed: institutions set their own release policies, but Land Use Victoria requires a grant to transmit land held as sole owner or tenant in common.
- Rule 2.03 of the Supreme Court (Administration and Probate) Rules 2023 requires a notice of intention to be posted on RedCrest-Probate not less than 14 days before a grant application, and the Court's guidance says to publish at least 15 days before applying; from 1 July 2026 filing fees range from nil under $250,000 to $17,770.80.
- Under Part IA of the Administration and Probate Act 1958 (Vic), a partner takes everything if all the intestate's issue are also the partner's; otherwise all the intestate's children share half the balance equally under section 70L; stepchildren have no intestacy share.
- Debts are paid in the statutory order, not at the executor's choice: section 39A for solvent estates, and the bankruptcy rules applied by section 39 for insolvent estates; premature payments can make the executor personally liable.
- Section 99A protects a proper distribution made more than six months after the grant, subject to written notice rules; a section 33 Trustee Act notice deals separately with unknown claims.
- A family provision application must be made within six months after the grant, and any application to extend that time must be made before final distribution.
- The deceased's final return and the estate's trust returns are separate; inherited assets are not automatically tax-free, and the main residence exemption generally requires disposal within two years of death.
This page answers the questions families most often ask when someone dies in Victoria. Each answer is short and links to a more detailed guide where one exists. The position always depends on the Will, how each asset was held and the family circumstances.
First steps and documents checklist
In the first weeks, the priority is to protect the estate and gather information, not to distribute anything. Useful steps and documents:
- the death certificate (the funeral director usually arranges registration with Births, Deaths and Marriages);
- the original Will and any codicils — check the deceased's papers, their lawyer and the Supreme Court's deposited wills register;
- securing the home, vehicles and valuables, and telling the home and contents insurer that the property may be vacant;
- a list of bank accounts, shares, super funds, insurance policies, real estate and debts, with statements close to the date of death;
- details of how real estate is held — as sole owner, joint tenants or tenants in common — from a title search;
- any family trust deeds, company records and binding death benefit nominations;
- the deceased's tax file number and recent tax returns, and the name of their accountant;
- contact details for everyone named in the Will, and for any children or partners the deceased had.
Do not sell, give away or distribute estate property, or pay creditors ahead of others, before the executor's authority and the estate's solvency are clear. Our guide to what an executor can do before probate covers the early period in more detail.
Applying for a grant: overview and 2026–27 fees
- Confirm whether a grant is needed, and which type — probate, letters of administration, or letters of administration with the Will annexed.
- Post a notice of intention to apply on RedCrest-Probate, and wait at least 15 days, as the Court's guidance directs.
- File the application online with the affidavit and inventory of assets and liabilities, and pay the filing fee.
- Deliver the original Will and any codicils to the Probate Office and answer any requisitions.
- Use the grant to collect assets and transmit land, then administer and distribute the estate.
Probate Office filing fees from 1 July 2026 are calculated on the gross value of the Victorian assets only, according to the Court's official fee list:
| Gross value of Victorian estate | Filing fee |
|---|---|
| Less than $250,000 | $0.00 |
| $250,000 or more but less than $500,000 | $544.00 |
| $500,000 or more but less than $1,000,000 | $1,088.00 |
| $1,000,000 or more but less than $2,000,000 | $2,538.70 |
| $2,000,000 or more but less than $3,000,000 | $5,077.40 |
| $3,000,000 or more but less than $5,000,000 | $7,598.80 |
| $5,000,000 or more but less than $7,000,000 | $12,693.40 |
| $7,000,000 or more | $17,770.80 |
Other fees include $38.00 to post the notice of intention, $285.00 for the Probate Office to prepare a small-estate application, and $354.00 to file a caveat. Fees change each 1 July. For the full process, see our guides to probate in Victoria and letters of administration.
Straight after a death
Does an enduring power of attorney still work after the person dies?
No. An enduring power of attorney ends on the death of the person who made it, so the attorney cannot keep using it to operate accounts, sign documents or sell property. Authority to deal with the estate comes from the Will, which appoints the executor, or from a grant of letters of administration. The same person may hold both roles, but they are separate roles with separate sources of authority.
Who pays for the funeral, and is signing the funeral contract risky?
Reasonable funeral expenses are payable out of the estate and rank ahead of ordinary debts. But the person who signs the funeral director's contract is usually personally liable to the funeral director under that contract, even if they expect to be reimbursed. Reimbursement from the estate is generally available for reasonable costs, but depends on the estate having sufficient assets. Banks commonly release funds from the deceased's account to pay a funeral account directly on production of the invoice and death certificate.
Who is entitled to see the Will?
Section 50 of the Wills Act 1997 (Vic) requires the person who has possession and control of a deceased person's will, revoked will or purported will to allow listed people to inspect and copy it at their own expense. They include any person named or referred to in the will, whether as a beneficiary or not; a beneficiary named in an earlier will; the spouse at the date of death and any domestic partner; a parent, guardian or child of the deceased; anyone who would share in the estate on an intestacy; the parent or guardian of a minor referred to in the will or entitled on intestacy; and a creditor or other claimant against the estate who produces evidence of the claim. The right is to inspect and copy the document — it is not a right to the original, which is needed for the grant application.
What if the original Will cannot be found, or the only 'Will' is informal?
The Court ordinarily requires the original Will. Search the deceased's papers, their lawyer's safe custody and the Supreme Court's register of deposited wills. If only a copy exists, an application may still be possible, but the applicant must explain the loss and overcome the presumption that a will last in the will-maker's possession that cannot be found was destroyed by them with the intention of revoking it. A document that does not meet the formal signing and witnessing requirements — an unwitnessed note, a text message or a video — can be admitted under section 9 of the Wills Act 1997 (Vic) only if the Court is satisfied the deceased intended it to be their will. These applications need evidence and should not be assumed to succeed.
Probate and letters of administration
What is the difference between an executor and an administrator?
An executor is appointed by the Will, and their office and authority arise from the Will on death. A grant of probate confirms that authority and proves it to third parties, but some steps — securing assets, arranging the funeral — can be taken before the grant. An administrator is different: they are appointed by the Court, and their authority arises from the grant of letters of administration. Before the grant, a prospective administrator has no general authority to deal with the estate.
Is a grant always needed? Is there a dollar threshold?
No universal dollar threshold exists in Victoria. For most assets, the institution holding the asset decides whether it will release it without a grant: banks, share registries and super funds each apply their own policies, often by reference to the value held. Land is different. Land Use Victoria will register the legal personal representative as owner of land held by the deceased as sole owner or as a tenant in common only on an Application by legal personal representative supported by a grant. Land held as joint tenants passes to the surviving owner by survivorship, recorded on an Application by surviving proprietor using the death certificate, without a grant. For small estates, the Probate Office offers an optional service to prepare the application; the Court's filing-fee tiers are a separate matter and do not decide whether a grant is required.
When are letters of administration needed instead of probate?
Letters of administration are needed where there is no valid Will. Letters of administration with the Will annexed are needed where there is a valid Will but no executor proves it — for example, where no executor was appointed, the named executors have died or lack capacity, or all of them renounce. Priority to apply follows the Supreme Court (Administration and Probate) Rules 2023, generally favouring the residuary beneficiaries under a Will, or on an intestacy the partner and then the next of kin entitled to share in the estate.
Can an executor refuse to act, or step back while others apply?
Yes, but they must choose. An executor who does not want to act can renounce before the grant, but an executor who has already intermeddled — dealt with the estate as executor — may be unable to renounce. Where there are several executors, one or more can apply while power is reserved to the others, who can later apply to join in. If a named executor is under 18, the Act provides for administration during their minority; if an executor lives overseas, they can still apply, although practical and verification steps are more demanding and a local attorney administration may be considered.
What if someone disputes the Will before a grant is made?
A person with a proper interest who has genuine grounds to dispute the Will — for example, lack of capacity, lack of knowledge and approval, undue influence or improper execution — can lodge a probate caveat with the Probate Office, which stops a grant from issuing while the caveat is in force. Where a validity dispute is pending, the Court can appoint an administrator pending litigation to protect the estate. A family provision claim does not challenge the Will's validity and is not a ground for a caveat.
How does the grant application work, and how long does it take?
Applications are made online through RedCrest-Probate. Rule 2.03 of the Supreme Court (Administration and Probate) Rules 2023 provides that the application must not be made unless a notice of intention to apply was posted on RedCrest-Probate not less than 14 days before it is made. The Court's own step-by-step guidance tells applicants to publish the notice at least 15 days before applying, so allow at least 15 days. No newspaper advertisement is needed for this notice. After that period, the applicant files the originating motion, an affidavit and an inventory of assets and liabilities, and then gives the Probate Office the original Will and any codicils. How long it takes depends on the completeness of the documents, any requisitions (queries) raised by the Probate Office, and the Court's current workload; no fixed timeframe can be promised.
What are the Court fees, and can the estate pay them?
Filing fees are set by the Supreme Court (Fees) Regulations 2018 and adjusted on 1 July each year. For applications filed from 1 July 2026, the fee is calculated on the gross value of the Victorian assets only and ranges from nil for estates under $250,000 to $17,770.80 for estates of $7 million or more; posting the notice of intention costs $38.00. The full table is set out above. Court fees, disbursements and reasonable legal costs of obtaining the grant are administration expenses payable out of the estate.
What if the deceased lived interstate or overseas, or owned assets elsewhere?
A Victorian grant covers the Victorian estate. Where the deceased's main grant was made in another Australian State or a recognised overseas jurisdiction, that grant can often be resealed by the Supreme Court of Victoria rather than making a fresh application. Assets outside Victoria are governed by the law and procedures of the place where they are located, and immovable property abroad may require a local grant. Domicile can affect which succession law applies to movable property, so cross-border estates warrant early advice in each jurisdiction involved.
What forms part of the estate
Do joint property, trusts, companies, life insurance and super form part of the estate?
The estate that the Will or intestacy rules distribute consists of the deceased's own property and beneficial interests, including money owed to the deceased such as loans and other receivables. Land held as joint tenants passes to the survivor. A joint bank account usually passes to the survivor, but survivorship is not automatic in every case: who beneficially owned the money can be disputed. A tenancy-in-common share does form part of the estate. Assets of a family trust belong to the trustee, not the deceased. Control of the trust passes according to the trust deed's succession provisions for the appointor and trustee, which may operate outside the Will; the estate does not automatically inherit control. The estate may still hold a fixed interest in the trust, a loan owed by the trust, or shares in its corporate trustee. A private company's assets belong to the company; the estate holds only the deceased's shares and any loan accounts. Life insurance is paid to the nominated beneficiary or to the estate, according to the policy. Superannuation is not automatically part of the estate: it is paid by the fund trustee under the fund's rules and the Superannuation Industry (Supervision) Act 1993 (Cth), in line with a valid binding nomination or otherwise at the trustee's discretion, and reaches the estate only if paid to the legal personal representative.
No valid Will: who inherits
Who is a 'partner' under the intestacy rules?
Part IA of the Administration and Probate Act 1958 (Vic) applies to people who die on or after 1 November 2017 without a valid Will, and, under section 70A, to property not disposed of by a Will (a partial intestacy). A partner is the intestate's spouse, domestic partner or registered caring partner at the time of death. A registered domestic partner qualifies on registration. An unregistered domestic partner must have been living with the intestate as a couple on a genuine domestic basis at the time of death, and must either have done so continuously for at least two years immediately before the death or be the parent of a child of the intestate who was under 18 at the death. A spouse remains a spouse until a divorce takes effect, but where the couple had separated, or the intestate also had a domestic partner, the Act's specific rules — including the multiple-partner provisions — must be applied to the facts.
How is the estate divided when there is a partner and children?
Under Part IA, a beneficiary must survive the intestate by 30 days. If the intestate leaves one partner and no children or other descendants, the partner takes the whole residuary estate (section 70J). If all the intestate's children or other issue are also the partner's issue, the partner also takes everything (section 70K). If the intestate leaves any child or other issue who is not also the partner's issue, section 70L applies: the partner takes the personal chattels, a statutory legacy with interest, and half of the balance, and all of the intestate's children — including children shared with the partner — share the other half equally. Under section 70L(3), the issue of a child who died before the intestate take that child's share; where the residuary estate is no more than the statutory legacy, the partner takes it all. The statutory legacy is indexed and the amount that applies depends on the date of death — our guide to dying without a Will sets out how it works. Multiple partners share under a distribution agreement, a Court distribution order or the statutory default. Stepchildren who were never adopted have no intestacy share, but some may be eligible to bring a family provision claim, which is a separate regime.
Running the administration
What does an executor or administrator actually have to do?
Core tasks include notifying the institutions that held assets; collecting and safeguarding assets, including insuring and securing vacant property; valuing assets at the date of death; identifying debts and the deceased's personal, joint and trust holdings; opening a separate estate bank account; paying debts and expenses in the correct order; dealing with tax; and distributing according to the Will or the intestacy rules. Estate money must never be mixed with personal money. The executor must keep reasonable records of every receipt and payment, and keep beneficiaries reasonably informed. Executors hold a fiduciary office — they must act in the interests of the estate and cannot profit from their position unless it is authorised.
In what order are debts paid, and what if the estate is insolvent?
Creditors cannot be paid in whatever order the executor chooses. For a solvent estate, section 39A of the Administration and Probate Act 1958 (Vic) sets the order in which property is applied to pay debts, subject to any contrary intention in the Will. For an insolvent estate that is not being administered in bankruptcy, section 39 requires the administration to follow the bankruptcy rules in force at the date of death, including their rules on creditors' rights, provable debts and priorities. An estate may also be administered in bankruptcy under Part XI of the Bankruptcy Act 1966 (Cth). An executor who pays some creditors or beneficiaries while others remain unpaid can be personally liable for the shortfall, so professional advice is important as soon as insolvency is possible.
What information are beneficiaries entitled to?
Section 50 of the Wills Act 1997 (Vic) gives listed people the right to inspect and copy the Will. It does not give a general right to estate information. A beneficiary under the Will is entitled to be told of their interest, and a residuary beneficiary is generally entitled to information about the estate's assets, liabilities and administration, and to proper accounts. Genuinely confidential material and legal advice obtained by the executor for their own protection may be withheld, but privilege and confidentiality cannot be used to refuse all information. Where requests are not answered, the Court can order the executor to file and pass accounts.
Distribution timing and protection
Does an executor have to wait six months before distributing?
There is no absolute embargo, but distributing early is risky. Section 99 of the Administration and Probate Act 1958 (Vic) requires a family provision application to be made within 6 months after the date of the grant — not the date of death. Under section 99A(3), a personal representative who distributes properly after that 6-month period is protected if they have not received notice of an application. If they have received a signed written notice of intention to apply, they are protected only if they receive no written notice that an application has been made within 3 months after that notice; such a notice cannot be renewed. If the personal representative has notice that an application has been made, they should not rely on the general section 99A(3) protection against that claim. Separately, section 99A(1) protects a distribution properly made for the maintenance, support or education of the deceased's partner or child, where that partner or child was totally or partly dependent on the deceased immediately before death, whether or not notice of an application or intended application has been received. Section 99A(2) protects a distribution properly made with the written consent of, or after written notice that no application will be made by, a person with full legal capacity — protection only against that person's claim. Under section 99A(4), a notice of intention must be signed by the eligible person or their lawyer; it does not extend the time for applying.
How does an executor deal with unknown creditors or claimants?
Section 33 of the Trustee Act 1958 (Vic) allows the executor to publish a notice of intended distribution, including in the Government Gazette and a Melbourne daily newspaper, inviting claims within a stated period of at least two months; a local newspaper notice may also be required if the deceased owned land more than 80 kilometres from Melbourne. After that period, an executor who distributes having regard only to the claims they have notice of is not personally liable for claims they had no notice of, but a claimant keeps any right to follow the assets into the hands of those who received them. The notice is optional, is separate from the RedCrest-Probate notice and from section 99A(3), and does not defeat a claim the executor already knows about. For a known claim, section 30 of the Administration and Probate Act 1958 (Vic) lets the executor serve a notice on the claimant; if the claimant does not commence or prosecute proceedings within 3 months after receiving it, the executor can apply to the Court for an order barring the claim or permitting distribution. The claim is not extinguished automatically.
Is there a deadline to finish the estate? What about interim distributions?
The 'executor's year' is a traditional benchmark for completing a straightforward administration, not a statutory deadline, and complex estates can properly take longer. An interim distribution is possible, but the executor should hold back enough to cover known and contingent debts, tax, costs and any possible claims, and should take a signed receipt. A receipt records the payment; it does not automatically release the executor or waive the beneficiary's rights unless it is drafted and given with informed consent as a release. A share for a minor or a person under a disability is usually held on trust. If a beneficiary cannot be found, the executor should make reasonable, documented enquiries and seek advice or directions rather than distribute that share to others.
Claims, disputes and changes
Who can make a family provision claim, and what must they show?
Only an 'eligible person' as defined in section 90 of the Administration and Probate Act 1958 (Vic) can apply. Eligible people include the spouse or domestic partner at the time of death, children and stepchildren, certain former spouses or domestic partners, and a person who for a substantial period believed the deceased was their parent and was treated by the deceased as a natural child. Four further categories must also show, under section 91(2)(b), that they were wholly or partly dependent on the deceased: a registered caring partner; a grandchild; the spouse or domestic partner of a child of the deceased, if that child dies within one year of the deceased's death; and a member of the deceased's household — someone who was a member at the time of death, or had been in the past and would likely have become one again in the near future had the deceased not died. Under section 91, the Court may order provision only if the deceased had a moral duty to provide for the claimant's proper maintenance and support and the estate fails to do so, considering the factors in section 91A. The application must be made within 6 months after the grant. The Court can extend that time, but an application for extension must be made before the estate's final distribution, and it does not disturb any distribution already made. No claim is guaranteed to succeed.
How are validity, construction, rectification and informal-will disputes different?
A validity challenge — incapacity, lack of knowledge and approval, undue influence, fraud or defective execution — asks whether a document should be admitted to probate at all, and is best raised before the grant, usually by caveat. A construction application asks the Court what the words of a valid Will mean. Rectification under section 31 of the Wills Act 1997 (Vic) corrects a Will that fails to carry out the will-maker's intentions because of a clerical error or a failure to understand their instructions, and ordinarily must be applied for within 6 months after the grant. An informal-will application under section 9 asks the Court to admit a document that is not formally executed. A family provision claim accepts the Will or intestacy and seeks further provision.
Can an executor be removed?
Removal is a matter for the Court, not a beneficiary vote. The Court can remove or replace a personal representative where that is needed for the proper administration of the estate and the welfare of the beneficiaries — for example, serious neglect, misconduct, an unmanageable conflict of interest or a breakdown that prevents the estate being administered. Dislike of the executor, or a majority of beneficiaries wanting a change, is not enough on its own. The Court often considers lesser remedies first, such as directions or an order to file accounts.
Is an executor paid?
Not automatically. An executor can recover reasonable out-of-pocket expenses properly incurred. Payment for their time requires authority. A Will may include a remuneration clause, but under section 65B of the Administration and Probate Act 1958 (Vic) it is effective only if the testator gave written informed consent to it before the Will was executed. In specified situations, section 65C allows remuneration instead with the informed consent of each interested beneficiary — those whose share would be reduced — so the agreement cannot bind a minor or a person without capacity. Section 65D requires plain-language disclosure of the basis and method of the remuneration, the estimated payment and the right to court review, with rules for substantial changes and for guardians where a beneficiary lacks capacity; an executor who breaches these requirements is not entitled to the commission or fees. Otherwise, under section 65 the Court can allow commission of up to 5 per cent of the assets, as is just and reasonable, for the executor's pains and trouble. Different rules apply to trustee companies.
Can the beneficiaries agree to change who receives what?
A deed of family arrangement binds the adult beneficiaries with capacity who sign it, and can vary what they receive as between themselves. It does not rewrite the Will, and it cannot bind a minor or person lacking capacity without Court approval, a creditor, the ATO, or anyone who does not sign it. Varying entitlements can have capital gains tax, stamp duty, Centrelink and other consequences, so each party should get independent advice before signing.
Tax
What tax returns does the estate need?
Two separate taxpayers are involved. If a return is required, the executor lodges the deceased's final 'date of death' individual return, covering 1 July to the date of death, plus any earlier returns that are outstanding. The estate is a separate trust taxpayer with its own tax file number. A trust return may be needed for each income year of administration, depending on the estate's income and whether beneficiaries are presently entitled to it. For the first three income years of the administration — income years, not three years from the date of death — the estate's income to which no beneficiary is presently entitled is generally taxed at resident individual rates; after that, higher rates can apply. The executor should confirm the tax position before final distribution.
Is an inheritance tax-free?
Australia has no separate inheritance tax, but that does not make an estate tax-free. Income the estate earns may be taxable. Capital gains tax is generally deferred when an asset passes to a beneficiary, so the beneficiary can inherit a future liability. A dwelling that was the deceased's main residence can be exempt if conditions are met — including that it was not being used to produce income just before death, that the deceased was not an excluded foreign resident, and that the estate or beneficiary disposes of it within 2 years of death, measured to settlement rather than the contract date; the ATO applies a safe-harbour extension in defined circumstances and can grant a discretionary extension on request. A superannuation death benefit paid to the estate is taxed according to whether the people who ultimately receive it are death benefits dependants for tax purposes, not simply because it passes through the estate.
More detailed guides
- Dying without a Will in Victoria — intestacy shares and the statutory legacy
- The duties of an executor in Victoria
- Notices of intended distribution — section 33 and section 99A protection
- Family provision claims in Victoria and time limits for claims
- Probate caveats in Victoria
- Informal and electronic wills
- Can an executor be removed? and Can an executor be paid?
- Deeds of family arrangement
- Does your Will control your superannuation?
- Estate tax in Australia: a guide for executors and CGT in deceased estates
- Legal requirements for a funeral in Victoria
Primary sources
- Administration and Probate Act 1958 (Vic) (Authorised Version No. 130) — ss 30, 39, 39A, 70A, ss 65B–65D, Part IA (including ss 70B, 70J, 70K and 70L), Part IV (ss 90, 91, 91A, 99, 99A)
- Wills Act 1997 (Vic) — ss 9, 31 and 50
- Trustee Act 1958 (Vic) — s 33; Bankruptcy Act 1966 (Cth) — Part XI
- Supreme Court (Administration and Probate) Rules 2023 (Vic) — r 2.03
- Supreme Court of Victoria — How to apply for a grant of probate or administration
- Supreme Court of Victoria — Probate Office fees, effective 1 July 2026
- ATO — Inherited property and CGT and Extensions to the 2-year ownership period
- Land Use Victoria — Application by legal personal representative; Application by surviving proprietor
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Probate & Deceased Estates · Wills & Estate Planning
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