Information Centre · Probate & Deceased Estates
Probate and deceased estates FAQs in Victoria
Neutral answers to questions Victorian executors, administrators, beneficiaries and family members ask about probate, letters of administration and deceased estate administration. Every estate is fact-specific — this guide is general information only.
Key points
- Probate is the Supreme Court of Victoria's formal recognition of a Will and the executor's authority to deal with the estate.
- Whether a grant is required depends on the current requirements of the asset-holders concerned, not a universal dollar threshold.
- Executors and administrators owe fiduciary duties and must act in accordance with the terms of the Will and the applicable statutory framework.
- Debts, funeral and administration expenses and tax obligations are dealt with according to the applicable statutory priorities before final distribution.
- Family provision claims are governed by sections 90, 91 and 99 of the Administration and Probate Act 1958 (Vic), with executor protections under section 99A.
- Deed-of-family-arrangement outcomes are not automatically binding on minors, persons lacking capacity, creditors or revenue authorities.
The death of a family member is a difficult time, and the legal process that follows can be unfamiliar. This FAQ answers the questions Victorian families ask about probate, letters of administration and estate administration. It is a general guide, not legal advice, and every estate turns on its own facts.
Executor office and the grant
The executor's office arises under the Will on death, and the executor's authority as between themselves and beneficiaries flows from that appointment. A grant of probate is the Supreme Court of Victoria's formal recognition of the Will and of the executor's authority as against third parties. Banks, share registries, the Land Registry, superannuation trustees and other asset-holders each set their own evidence requirements before dealing with estate assets — a grant is often, but not always, part of that evidence. Our step-by-step guide on probate in Victoria explains the application process in more detail.
Wills, intestacy and letters of administration
Where the deceased left a valid Will, the estate is administered by the executor named in it. Where there is no valid Will, the estate is administered under the intestacy provisions in Part IA of the Administration and Probate Act 1958 (Vic). Who takes and in what proportions — including the position of a surviving partner (or, in some cases, multiple partners), children (including of an earlier relationship), and other relatives, and the operation of the statutory legacy, threshold and interest components — is fact-specific. Where there is a Will but no executor is willing or able to prove it, the Court may make a grant of letters of administration with the Will annexed. Who is entitled to apply, and in what order of priority, is determined by the Act and the Rules on the specific facts.
Estate assets, liabilities and tax
Assets that stand in the deceased's name at death are generally within the estate. Whether joint property, a life insurance policy or superannuation passes outside the estate depends on the title and beneficial ownership, the terms of the policy or fund, and — for superannuation — the validity of any nomination and the trustee's decision or direction in the circumstances. The interaction between super and the Will is explored in our article on superannuation and your Will.
Reasonable funeral, testamentary and administration expenses, and the estate's debts and tax, are dealt with according to the priorities that apply having regard to the solvency of the estate and the facts. Whether a final tax return for the deceased and a trust tax return for the estate must be lodged depends on the ATO's current tests and the estate's income and gains during administration.
Beneficiaries, information and distribution
The information a beneficiary is entitled to depends on the interest they hold, the stage of administration, legal professional privilege, third-party confidentiality and the Court's supervisory role. Distribution timing is dealt with by sections 99 and 99A of the Administration and Probate Act 1958 (Vic) rather than by a categorical six-month embargo — the personal representative must consider known liabilities, contingent liabilities, tax, potential Part IV claims and any specific beneficiary-position issues.
Where beneficiaries wish to vary the way the estate is distributed as between themselves, a deed of family arrangement can, in appropriate cases, record the agreed variation. A deed does not automatically bind a minor, a person lacking capacity, a creditor, a revenue authority or a third party. Independent advice for each party should be taken before signing.
Disputes and contested estates
Estate disputes are of different types with different procedural and evidential rules — will-validity challenges, construction, rectification or informal-will applications, family provision claims under Part IV, and executor or administrator disputes concerning the conduct of the administration. Family provision claims seek further provision from the estate and are distinct from proceedings about whether or what grant should issue; overlapping proceedings may exist on the facts. Our guides on family provision claims in Victoria and executor disputes in Victoria address those regimes separately. Removal and remuneration of an executor or administrator are discretionary and fact-specific.
Wills & estate planning context
Many of the issues that arise in deceased estate administration can be reduced with current Wills, considered use of testamentary trusts, appropriate superannuation nominations and well-drafted enduring powers of attorney. Our wills and estate planning service can help you put a robust plan in place.
Frequently Asked Questions
What is probate, and how is it different from being appointed executor?
The executor's office arises under the Will on death; the executor's authority to act between themselves and beneficiaries flows from that appointment. A grant of probate is the Supreme Court of Victoria's formal recognition of the Will and of the executor's authority as against third parties — banks, share registries, the Land Registry, superannuation trustees and other institutions — which set their own evidence requirements before releasing assets or dealing with title.
When is a grant required in Victoria?
There is no universal dollar threshold. Whether a grant is needed depends on the current requirements of each asset-holder and on the way the deceased held the asset. Sole-name or tenant-in-common Victorian real property generally requires a grant before the legal personal representative can deal with the land. For other assets — bank accounts, shares, managed funds, term deposits and superannuation paid to the estate — the current evidence policy of the specific institution should be checked.
What are letters of administration, and administration with the Will annexed?
Letters of administration are sought where the deceased died without a valid Will (intestacy). Administration with the Will annexed is sought where there is a valid Will but no executor is willing or able to prove it (for example, where the executor has predeceased, renounced, lost capacity, or where all named executors decline). Who may apply, and in what order of priority, is determined by the Administration and Probate Act 1958 (Vic) and the Rules on the specific facts.
What happens if someone dies without a valid Will?
The estate is distributed under the intestacy provisions in Part IA of the Administration and Probate Act 1958 (Vic). The entitlements of a partner (including in some cases multiple partners), children (including of an earlier relationship) and other relatives, and the operation of the statutory legacy, threshold and interest components, depend on the family situation and the assets. The order and quantum are fact-specific — the Act should be applied to the actual family circumstances.
Do joint property, life insurance and superannuation always pass outside the estate?
Not necessarily. Whether an asset passes outside the estate depends on the title and beneficial ownership, the terms of the policy or fund, and — for superannuation — the validity of any nomination and the trustee's decision or direction. Joint tenancy real property generally passes to the survivor by survivorship; a tenancy in common share does not. A life insurance policy paid to a nominated beneficiary is paid to that person, but a policy paid to the estate falls into the estate. A binding death benefit nomination that meets the fund's rules can direct payment; otherwise the trustee decides in accordance with the fund's rules and applicable law.
What does an executor or administrator have to do?
An executor or administrator owes fiduciary duties and must act in accordance with the Will (where applicable) and the applicable statutory framework. Core functions typically include locating the Will and death certificate, identifying and safeguarding assets, dealing with liabilities and tax, applying for a grant if required, keeping records, communicating appropriately with beneficiaries, and distributing the estate. What is required in a particular estate depends on the assets, the beneficiaries and any disputes.
Who pays funeral and administration expenses, and in what order are debts paid?
Reasonable funeral, testamentary and administration expenses are payable out of the estate. The order in which debts and expenses are paid depends on whether the estate is solvent or insolvent and on the statutory priorities that apply. A person who has personally paid a reasonable funeral account may be entitled to reimbursement from estate funds when available.
What information are beneficiaries entitled to?
A beneficiary's information rights depend on the interest they hold in the estate, the stage of administration, legal professional privilege, third-party confidentiality and the Court's supervisory role. Beneficiaries are generally entitled to be kept reasonably informed and, at appropriate stages, to an accounting. Disputes about information provision can be brought to the Court for directions.
How is executor removal handled?
Removal of an executor or administrator is discretionary and fact-specific. The Court may consider the seriousness of the conduct, the effect on the administration, the availability of less intrusive relief (such as directions or accounts), the position of the beneficiaries, and the availability of a suitable replacement. Removal is one of several tools available to the Court.
Is an executor paid?
An executor is not automatically entitled to remuneration. Payment may be provided for in the Will, agreed by all informed beneficiaries who have capacity, or ordered by the Court under section 65 of the Administration and Probate Act 1958 (Vic). Professional executor remuneration depends on the terms of the appointment.
What is a family provision claim, and how does the timing work?
Family provision claims seek further provision from the estate and are distinct from proceedings about whether or what grant should issue; overlapping proceedings may exist on the facts. A family provision claim under Part IV of the Administration and Probate Act 1958 (Vic) is an application by an eligible person for further provision from a deceased estate. Categories of eligibility are set by sections 90 and 91 of the Act, with dependency and other conditions applying to some categories. Section 99 sets an ordinary six-month period from the date of the grant for making an application, subject to the Court's power to extend on the conditions the section sets. Section 99A provides specific protections for the personal representative in respect of distributions made on the conditions the section sets. Every case turns on its facts.
How are will-validity, construction, family provision and executor disputes different?
They are separate regimes. Will-validity challenges (for example, capacity, knowledge and approval, undue influence, due execution) go to whether a document should be admitted to probate. Construction, rectification or informal-will applications concern the meaning or admissibility of a testamentary document. Family provision claims accept that the will or intestacy governs distribution and seek further provision. Executor and administrator disputes concern the conduct of the administration itself. Each has its own procedural and evidential requirements.
Does the estate have to lodge a tax return?
Whether a final tax return for the deceased and a trust tax return for the estate must be lodged depends on the ATO's current tests, the income and gains of the estate during administration, the availability of relevant concessions and the identification of presently entitled beneficiaries. Tax or accounting advice may be appropriate on the estate's facts.
Can beneficiaries vary the way the estate is distributed?
A deed of family arrangement can, in appropriate cases, vary the distribution recorded in the Will or in the intestacy rules as between beneficiaries. Such a deed does not automatically bind a minor, a person lacking capacity, a creditor, a revenue authority or a third party, and does not override the executor's obligations to those parties. Independent advice for each party should be taken before signing.
Related Reading
- Probate in Victoria: a practical guide for executors
- 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.