When a Retirement Village Resident Dies in Victoria

Table of Contents

1. The direct answer
2. Immediate steps after the resident's death
3. Notifying the retirement village operator
4. Identifying the correct village agreement
5. Understanding the resident's legal and occupancy structure
6. Who has authority to act for the estate
7. Executor appointed by a will
8. Administrator where there is no valid will
9. What may happen before probate or letters of administration
10. Whether a surviving attorney can continue acting
11. Role of a guardian or administrator appointed by VCAT
12. Access to the residence after death
13. Securing keys, documents and valuables
14. Preparing an inventory of personal belongings
15. Removing, storing or disposing of belongings
16. Joint occupation and surviving spouse issues
17. Death of one of two resident parties
18. Whether the occupancy right ends automatically
19. Ongoing recurrent charges and service fees
20. Utilities, insurance, rates and maintenance expenses
21. Operator access and inspection rights
22. Condition reports and photographic evidence
23. Refurbishment, reinstatement and repair issues — overview only
24. Obtaining quotations and challenging deductions
25. Sale, resale or reletting of the residence
26. Appointment of selling agents and marketing arrangements
27. Delays in sale or reletting
28. Calculation of the exit entitlement
29. Deferred management fees and other deductions
30. Capital gain or loss sharing where applicable
31. When the estate should receive payment
32. Statements and documents the executor should demand
33. Reconciliation of operator accounts
34. GST, income tax and estate accounting issues
35. Probate inventory and valuation issues
36. Distribution of the exit entitlement through the estate
37. Insolvent estates and unpaid liabilities
38. Claims by beneficiaries or family members
39. Disputes with the operator
40. Signing settlement deeds or releases
41. Common executor mistakes
42. Practical action plan
43. Worked examples
44. When urgent legal advice is needed
45. Conclusion
46. Frequently Asked Questions

Immediate steps after the resident's death

The first task is welfare and notification — obtain the medical cause of death certificate from the treating doctor or hospital, notify next of kin, and arrange a funeral director. Parke Lawyers' article on the legal requirements for a funeral in Victoria explains the registration of death and related statutory steps in more detail. The retirement village operator should then be notified in writing as soon as practicable.

The table below sets out a typical sequence of immediate actions. Each action should be documented — what was done, when, by whom, and the evidence retained — so the estate has a clear record if a dispute emerges later.

Notifying the retirement village operator

Initial notification should be in writing — an email or letter addressed to the village manager and copied, where practicable, to the operator's head office. The written notice should record the resident's full name, unit number, date of death, name and contact details of the executor or proposed administrator, and a request that the operator confirm in writing the steps it now expects of the estate. The death certificate should be provided as soon as issued.

Verbal notice alone is insufficient. Operators ordinarily require written evidence before they will engage substantively, and contemporaneous documentation protects the estate if any later dispute turns on timing — for example, when statutory clocks for recurrent-charge concessions or maximum waiting periods began to run.

Identifying the correct village agreement

The residence and service contract is the single most important document. The executor should locate the most current signed version, together with any amendments, variations, special conditions, the disclosure statement and any subsequent disclosure updates, the village rules, and any side letters or addenda. Where the resident moved units within the same village, or renegotiated material terms during residence, more than one contract may be relevant.

If the agreement cannot be located, request a complete copy from the operator in writing. The Retirement Villages Act 1986 (Vic) and the regulations require operators to provide statutorily prescribed information on request, and a properly framed request supported by evidence of authority should be answered.

Understanding the resident's legal and occupancy structure

Victorian retirement village arrangements take several distinct legal forms, and the underlying structure shapes almost every downstream issue — how occupancy ends, who pays what, who controls resale, how the exit entitlement is calculated and what the estate is entitled to. Common structures include leasehold, licence, loan-licence, company-title and strata-title (with a separate service or maintenance arrangement).

Each structure interacts differently with probate and estate administration. A leasehold or licence arrangement typically gives the estate a right to payment rather than a saleable property interest; a strata-title or company-title arrangement may give the estate a transferable asset to be sold or transmitted to a beneficiary. The article on common contract clauses outlines the principal structures in more detail.

Retirement villages are not the same as residential aged care (which is regulated by separate Commonwealth legislation) and are not ordinary residential tenancies under the Residential Tenancies Act 1997 (Vic). Treating a retirement-village exit as either an aged-care matter or a residential tenancy matter is a common — and consequential — mistake.

Who has authority to act for the estate

Authority to act for the deceased resident is a function of estate law, not family relationship. The operator will (and should) ask who is dealing with the estate and what evidence of authority is held. Until the executor has probate or the administrator has letters of administration, authority is limited.

The following table summarises common positions. The entries are general guidance only — the precise position depends on the agreement, the title structure, the estate circumstances and the operator's requirements. Complex authority questions cannot be reduced to absolute yes/no answers.

Executor appointed by a will

Where the deceased left a valid will, the executor named in the will is the person entitled to administer the estate. The will may name a sole executor, joint executors, or executors in succession. The executor derives initial authority from the will but most institutions — including retirement village operators — require formal proof through a grant of probate before engaging on substantive matters.

The general estate-administration framework, including executor duties, the steps from death to final distribution and the practical executor checklist, is covered in the executor's guide to estate administration in Victoria. That article remains the broader reference; the present article focuses on the retirement-village-specific issues that arise within it.

Administrator where there is no valid will

Where there is no will (intestacy), or where the will does not validly appoint an executor able and willing to act, the estate is administered by an administrator appointed under letters of administration by the Supreme Court of Victoria. The order of priority among potential applicants is set by the rules and reflects the intestacy distribution rules in Part IA of the Administration and Probate Act 1958 (Vic).

The general procedure for letters of administration — who may apply, the documents required, the timing of the grant and the steps that follow — is set out in the practical guide to letters of administration in Victoria. The present article does not reproduce that material; it deals with the specific issues that arise when the administered estate includes a retirement village arrangement.

What may happen before probate or letters of administration

Some practical steps can be taken before the grant. Common examples include: written notification of death; securing the unit (with the operator's cooperation); taking an inventory and photographs of belongings; redirecting mail; contacting the insurer to confirm cover during the unoccupied period; requesting an information pack from the operator; and obtaining certified copies of the death certificate.

Steps that should generally wait until the grant include: clearing the unit and removing belongings; agreeing refurbishment scopes; entering into a sale or reletting agreement on the estate's behalf; signing a settlement deed or release; and receiving payment of the exit entitlement. Operators may decline to engage on substantive matters until proof of grant is provided, and an executor or administrator who deals with estate assets before authority is confirmed may face personal risk. Whether probate is required at all depends on the wider estate; the article on how long probate takes in Victoria explains the typical timing of the process.

Whether a surviving attorney can continue acting

An enduring power of attorney under the Powers of Attorney Act 2014 (Vic) ends on the principal's death. An attorney who continues to deal with the principal's affairs after death — including the retirement village operator — has no legal authority and may be personally liable. The attorney's role switches to providing the executor or administrator with records of acts done during the appointment.

Where the attorney holds documents, has been in communication with the operator, or has been responsible for paying recurrent charges from the resident's funds, those records should be passed to the executor as soon as practicable. Where there are concerns about the attorney's past conduct, the article on attorney abuse in Victoria sets out the available remedies.

Role of a guardian or administrator appointed by VCAT

A guardian or administrator appointed under the Guardianship and Administration Act 2019 (Vic) during the resident's lifetime ceases to hold office on death. Like a former attorney, the prior guardian or administrator should pass records to the executor and should not engage with the operator on the deceased's behalf after death. Any outstanding financial transactions or fee payments authorised during the appointment should be reconciled with the executor.

Access to the residence after death

Access to the unit is governed by the residence contract, operator policy and practical safety considerations. After death the operator typically has (and should be allowed to exercise) continuing access for safety, maintenance, security and inspection purposes. The estate's access — to inventory, photograph, clear and tidy the unit — should be coordinated with the operator in writing rather than asserted unilaterally.

Securing keys, documents and valuables

Keys, swipe cards and access devices should be collected and held securely by the executor. Important documents — the residence and service contract, fee statements, condition reports, photographs, will, powers of attorney, identification and financial records — should be located, copied and stored. Cash, jewellery and other valuables should be inventoried, photographed and stored securely off-site if practical.

Preparing an inventory of personal belongings

A dated inventory of personal belongings, supported by photographs of each room and significant items, is a standard estate-administration step and is particularly valuable in retirement-village exits. The inventory protects the executor against later allegations from beneficiaries, supports any later dispute about condition of the unit, and provides a baseline against which refurbishment proposals can be assessed. Preparing the inventory with a witness or a professional removalist adds further weight.

Removing, storing or disposing of belongings

Belongings should be removed only by, or with the written authority of, the executor. Items disposed of under the will should be distributed in accordance with its terms; items not specifically disposed of form part of the residuary estate. Significant items may need to be valued for probate inventory purposes. Where items are sold, the proceeds form part of the estate; disposal of low-value items should be documented in broad terms. The operator generally cannot dispose of uncollected belongings without proper notice and authority.

Joint occupation and surviving spouse issues

Where the residence and service contract records two residents, the survivor's position depends on the structure of the joint arrangement. Some contracts create a true joint occupancy with rights of survivorship; others record two separate residents whose entitlements are several. The disclosure statement and contract should be read together to identify survivorship, ongoing charges and any operator rights triggered by the death of one resident.

Death of one of two resident parties

On the death of one of two residents, common questions include whether the survivor may continue to occupy, whether recurrent charges change, whether refurbishment obligations are triggered, whether the operator may require the survivor to move to a smaller unit, and how the exit entitlement is divided when the survivor eventually departs. Each of these questions is governed by the contract and (where relevant) the legislation and should not be answered by assumption.

Whether the occupancy right ends automatically

In most Victorian retirement-village structures, the occupancy right does not end automatically on the resident's death. The agreement continues, with modifications, until the operator's exit and resale or reletting processes are completed and the exit entitlement is paid. Treating the agreement as automatically ended on death can cause the estate to overlook continuing obligations and rights — and occasionally to lose entitlements that depend on following the statutory or contractual process.

Ongoing recurrent charges and service fees

Recurrent charges (sometimes called maintenance charges, service charges or general services charges) generally continue to be payable after death, subject to any contractual or statutory cap. The Retirement Villages Act 1986 (Vic) and regulations include provisions limiting the period for which the estate of a deceased resident is liable for recurrent charges after the unit is vacated. The applicable position should be checked against the current wording of the legislation and the contract.

Utilities, insurance, rates and maintenance expenses

Utilities and insurance need active management. The executor should: notify utility providers of the death and arrange final accounts (or transfer of accounts to the estate); contact the insurer to confirm cover during the unoccupied period; check rates and any owners corporation charges (in strata structures); and arrange ongoing minor maintenance to protect the unit's saleability. Records of all of these expenses form part of the estate accounts and may be relevant to the exit calculation.

Operator access and inspection rights

The operator will typically need access for safety checks, valuation, marketing and refurbishment assessment. The executor should ask the operator to provide written records of each access — date, time, personnel, purpose — and copies of any inspection reports prepared. Where keys are held by the operator, the executor should request written confirmation of the protocol for access and the persons authorised to attend.

Condition reports and photographic evidence

Entry condition reports (if retained) are an important baseline. The executor should compare any entry condition report against the current state of the unit before clearing, take dated photographs of each room and significant fittings, and retain those photographs in the estate file. Where the operator prepares an exit condition report, request a copy and review it against the entry baseline and the executor's independent record.

Refurbishment, reinstatement and repair issues — overview only

Refurbishment, reinstatement and repair obligations are a frequent source of dispute on a retirement-village exit. The scope of the obligation, the standard, the choice of contractor and the dispute pathway are all matters of contract — and where the contract is silent or ambiguous, of statutory and consumer-law overlay. This article addresses refurbishment only at an overview level; detailed coverage will be reserved for a separate dedicated article on retirement-village refurbishment disputes in Victoria.

At an overview level, the executor should: locate any contractual definition of refurbishment, reinstatement or fair wear and tear; obtain the operator's proposed scope in writing with itemised costing; preserve photographic evidence of the unit's condition; and seek independent advice before agreeing to substantial deductions.

Obtaining quotations and challenging deductions

Where refurbishment or reinstatement deductions are proposed, the executor should ordinarily request itemised quotations, copies of invoices once work is done, and supporting documentation for any internal operator charges. Where the contract permits the executor to obtain competing quotations, those should be sought from licensed trades. Deductions that go beyond fair wear and tear, that duplicate other deductions, or that lack supporting documentation are properly contestable.

Sale, resale or reletting of the residence

The resale or reletting process depends on the occupancy structure. In leasehold and loan-licence villages, the operator typically controls resale; the estate's role is to facilitate access, agree on necessary refurbishment and monitor the operator's activity. In strata-title or company-title villages, the estate may have direct control of the sale, subject to operator consents or rights of first refusal recorded in the agreement.

Appointment of selling agents and marketing arrangements

Where the contract gives the operator (or its nominee) the right to appoint the selling agent, the estate should still request the marketing plan, the agent's commission structure, the proposed asking price, the comparable sales relied upon, and the marketing expenses to be charged to the estate. Where the executor has greater control, independent agent recommendations and competitive tender should be considered.

Delays in sale or reletting

Resale and reletting timeframes vary widely with the local property market, the village's reputation and the operator's engagement. Where delay is causing real loss, the executor should: keep a contemporaneous file of correspondence with the operator and agent; request marketing reports; check the maximum waiting period in the contract and the Act after which the exit entitlement is payable regardless of resale; and write a formal demand once any contractual or statutory trigger has been reached.

Calculation of the exit entitlement

The exit entitlement is calculated under the residence contract. In broad terms it starts from either the resale price (after sale to an incoming resident) or the original ingoing contribution, adjusted under the contract for any agreed capital gain or loss sharing, and is then reduced by deferred management fees, refurbishment and reinstatement deductions, outstanding recurrent charges (to the contractual or statutory cap), other agreed deductions and statutory items.

The detailed mechanics of exit fees and resident rights on departure — including the formulae, capping provisions and common areas of dispute — are covered in the article on leaving a retirement village. The present article does not reproduce that analysis; it focuses on the deceased-estate-specific issues that sit on top of it.

Deferred management fees and other deductions

The estate should obtain a written deferred management fee calculation showing: the contractual percentage and the basis on which it accrues; the dates and durations relied upon; the underlying figure (ingoing contribution, resale price or other contractual base); and the arithmetic. The executor should check the calculation against the contract and consider whether an independent review is warranted before accepting it. Other deductions — marketing and sales commission, legal fees, refurbishment, owners corporation contributions — should each be supported by primary documentation.

Capital gain or loss sharing where applicable

Some contracts entitle the resident (and so the estate) to a share of capital gain on resale; some impose a share of capital loss. The applicable percentages, calculation base, capping and offset rules vary widely. The executor should request a written breakdown showing the assumed entry value, the resale value, the agreed sharing percentage and any offset against the deferred management fee.

When the estate should receive payment

Payment timing depends on the contract, the statutory framework and the resale outcome. The Retirement Villages Act 1986 (Vic) and the regulations typically include a maximum waiting period after which the exit entitlement is payable to the estate regardless of resale or reletting. Where that period has expired and payment has not issued, the executor should formally demand payment in writing, identify any interest entitlement, and consider VCAT proceedings if the operator continues to withhold payment.

Statements and documents the executor should demand

A complete documentary record protects the estate. The checklist below covers the documents an executor ordinarily needs in a retirement-village exit. Not every estate will need every document, and additional documents may be required in particular cases.

• The will (and any codicils).
• Certified copies of the death certificate.
• The grant of probate or letters of administration.
• The residence and service contract (and any amendments).
• The disclosure statement and any subsequent disclosure updates.
• The village rules.
• Title documents or occupancy documents.
• Fee schedules and budgets.
• Recurrent-charge statements and account ledgers.
• Entry and exit condition reports.
• Dated photographs of the unit.
• Refurbishment scopes, quotations and invoices.
• Sales agency agreement and marketing statements.
• Operator's exit-entitlement calculation in writing.
• Bank statements and proof of payment.
• Insurance policies and schedules.
• Correspondence with the operator and agent.
• Personal property inventory with photographs.
• Settlement deed or release documents in draft and final form.

Reconciliation of operator accounts

Operator accounts should be reconciled to bank statements line by line. Particular attention should be paid to: charges accrued after death and the application of any statutory cap; reversal of charges that should not have been levied; double counting between refurbishment and ongoing maintenance; allocation of capital gain (or absorption of capital loss); credit balances and refunds; and interest.

GST, income tax and estate accounting issues

Tax treatment depends on the structure and the nature of each component of the exit payment. Some components may be capital in nature; others — particularly interest payable on delayed payment — may be income. GST treatment of refurbishment, marketing and other deductions may also affect the net position. The executor should obtain accounting and (where appropriate) tax advice before finalising the estate accounts. The broader executor tax framework is discussed in the article on tax returns for deceased estates.

Probate inventory and valuation issues

The retirement-village interest must be properly described in the probate inventory. The description depends on the structure — a leasehold or loan-licence interest is typically valued at the estimated exit entitlement net of expected deductions, while a strata or company-title interest is valued as real property or a share. The valuation methodology should be documented and supported by evidence.

Distribution of the exit entitlement through the estate

The exit entitlement, once received, is distributed under the will or the rules of intestacy. Where the will makes a specific gift of "my retirement village interest" or similar, the executor should obtain advice on whether that gift adeems (fails) because the interest converts to a money payment, or whether the gift carries over to the proceeds. Specific and residuary beneficiaries may have different interests in the outcome.

Insolvent estates and unpaid liabilities

If the estate is, or may be, insolvent — for example, where village deductions and other liabilities exceed the gross estate — the executor must not pay beneficiaries ahead of creditors. The statutory priority for payment of estate debts applies, and distribution in breach of that priority can expose the executor to personal liability. Early specialist advice is essential.

Claims by beneficiaries or family members

Beneficiaries are entitled to ask the executor for information about the estate, to inspect the estate accounts and to receive the gifts made to them under the will. Where eligible family members consider that they have been inadequately provided for, a family provision (testator's family maintenance) claim under Part IV of the Administration and Probate Act 1958 (Vic) may be made; the article on family provision claims in Victoria covers eligibility, time limits and process.

Disputes with the operator

Disputes with the operator on a deceased-estate exit typically concern: refurbishment scope and cost; exit-entitlement calculation; delays in resale and payment; recurrent-charge accrual; capital gain or loss treatment; condition of the unit on departure; and the terms of any proposed release. The general framework for dispute resolution — internal complaint, negotiation, mediation, VCAT and (in some cases) the Supreme Court — is set out in the article on retirement village disputes and VCAT in Victoria. The present article identifies the deceased-estate-specific issues; the other article owns the broader dispute and VCAT analysis.

The exit process can be mapped against operator and executor roles, the documents to obtain and the common disputes that arise at each stage. The table below summarises a typical sequence.

Signing settlement deeds or releases

Operators commonly require the executor to sign a release or settlement deed before paying the exit entitlement. The release will typically discharge the operator from further claims, sometimes in very broad terms, and may include confidentiality, non-disparagement and indemnity provisions. The executor should obtain legal advice before signing. Targeted amendments — reservation of identified claims, carve-outs for matters not yet disclosed, deletion of overly broad indemnities, alignment of confidentiality with the estate's reporting duties to beneficiaries — often substantially improve the position.

Common executor mistakes

• Treating a verbal phone call as sufficient notification of death.
• Assuming the executor has full authority before probate.
• Continuing to act on an expired enduring power of attorney.
• Allowing family members to remove belongings informally.
• Failing to inventory and photograph the unit before clearing.
• Accepting a summary exit calculation without supporting detail.
• Agreeing refurbishment scopes without checking the contract.
• Allowing recurrent charges to accrue past statutory or contractual caps without challenge.
• Signing a broad release without legal advice.
• Distributing the exit payment before reconciling estate liabilities.
• Confusing retirement-village arrangements with aged care or residential tenancy.
• Missing statutory or contractual time limits for complaint or proceedings.

Practical action plan

1. Notify the operator in writing as soon as practicable.
2. Locate the will, the residence contract and the disclosure statement.
3. Identify who has authority to act and obtain advice on the timing of probate or letters of administration.
4. Secure and photograph the residence; inventory personal belongings.
5. Obtain full account and fee statements from the operator in writing.
6. Clarify recurrent charges, statutory caps and insurance position.
7. Review proposed refurbishment scopes and deductions against the contract.
8. Monitor sale or reletting; check the maximum waiting period and statutory interest.
9. Independently check the exit-entitlement calculation line by line.
10. Obtain advice before signing any release or settlement deed.
11. Receive payment, reconcile to operator's calculation, and record in the estate accounts.
12. Retain all records for the period required by the estate's tax and accounting obligations.

Worked examples

The following hypothetical examples illustrate how common scenarios may be approached. They are illustrative only, are not decided cases, and do not constitute legal advice — every retirement-village estate turns on its own contract, structure and facts.

Example 1 — Sole resident dies with a valid will; probate pending. The named executor notifies the operator in writing on the day after death, provides the death certificate within a week, and inventories the unit with a friend present. Probate is granted six weeks later, after which the executor signs the operator's engagement documents, agrees a refurbishment scope (negotiated down from the operator's initial proposal after review against the contract), and receives the exit entitlement following resale four months later.

Example 2 — Resident dies intestate; family members disagree about access. The deceased has three adult children, none of whom hold a will. The eldest child seeks immediate access to the unit; the operator declines pending evidence of authority. Letters of administration are sought and the administrator coordinates an orderly inventory and clearance. Disputes about who keeps which item are resolved by reference to family arrangements documented in the estate file.

Example 3 — One resident dies; surviving spouse remains in occupation. The agreement records joint occupancy. The survivor continues to live in the unit. The operator confirms in writing the position on recurrent charges going forward and the operator's obligations on a future single-resident exit. The executor of the deceased's estate documents the position and the file is retained for the survivor's eventual exit.

Example 4 — Operator proposes extensive refurbishment deductions. The proposed scope includes complete recarpeting, repainting, kitchen replacement and bathroom retiling. The executor obtains an itemised quotation, two independent comparative quotes, and dated photographs taken on the day of clearing. After negotiation, the scope is reduced to the items genuinely beyond fair wear and tear, and the net deduction is materially lower.

Example 5 — Resale is delayed and recurrent charges continue. Twelve months after vacancy the unit has not resold. The executor checks the contract and the legislation, identifies a statutory maximum waiting period that has expired, demands payment in writing and gives a deadline. Payment is received with statutory interest shortly afterwards; no VCAT application is required.

Example 6 — Executor disputes the exit-entitlement calculation. The operator's calculation applies the deferred management fee to the resale price rather than the contractual base; capital gain is calculated against a low historic figure; and marketing expenses include items not contemplated by the contract. After written exchanges and a compulsory conference, the operator amends the calculation and pays the difference.

Example 7 — Belongings removed without inventory. A family member removes furniture and personal items in the days following death. The executor cannot establish a baseline for the unit's contents; a later dispute about a missing item cannot be resolved on the evidence. The executor adopts a written family arrangement to resolve the issue and tightens the access protocol going forward.

Example 8 — Insolvent estate with outstanding village liabilities. The exit entitlement, after deferred management fee, refurbishment, outstanding recurrent charges and other deductions, does not meet outstanding estate liabilities. The executor obtains specialist advice on creditor priorities, defers distribution to beneficiaries, and negotiates with creditors before any distribution is made.

When urgent legal advice is needed

Urgent legal advice is appropriate where any of the following arise: the operator threatens to dispose of belongings without authority; the executor is asked to sign a broad release or settlement deed under time pressure; the proposed refurbishment deductions are very large or are not supported by the contract; the unit is unoccupied for a period that may affect insurance cover; the estate may be insolvent; beneficiaries are in active dispute about access or distribution; or any statutory or contractual time limit is approaching. Parke Lawyers' team can be engaged through the firm's probate and estate administration service.