Information Centre · Probate & Deceased Estates
What Not to Do Immediately After Someone Dies in Victoria
Immediately after someone dies, do not rush to distribute assets, sell property, close accounts, make promises to beneficiaries, or sign documents before the will, executor authority and estate position are understood.
Key points
- The first weeks after a death are when the most expensive legal and financial mistakes are made — rushed distributions, promises to family members, unauthorised sales and unauthorised bank withdrawals are recurring themes in Victorian estates.
- Executor authority is only conferred by the will (or, without a will, by letters of administration under the Administration and Probate Act 1958 (Vic)); an enduring power of attorney lapses on death and does not authorise anyone to deal with the estate.
- Estate debts are debts of the estate — paying them from personal funds without documentation, or paying one creditor ahead of others where the estate may be insolvent, can expose the payer to personal liability that is difficult to reverse.
- Joint bank accounts, superannuation, life insurance, some pensions and jointly owned property commonly pass outside the estate; assuming everything passes under the will (or that the will controls superannuation) is a common and consequential error.
- Family provision, will validity and estate dispute risk should be assessed early — a blended family, an adult child left out, a long-standing carer, an ex-spouse or a dependant can all trigger a claim under Part IV of the Administration and Probate Act 1958 (Vic).
- The first practical priorities are securing the home and important documents, locating the latest will and identifying the executor, confirming who will arrange the funeral, and obtaining legal advice before any distribution, sale, transfer or contested decision.
Twelve Missteps to Consider in the First Weeks
The days and weeks after a death are already difficult. The list below is not exhaustive and no timing rule applies to every estate; it identifies points on which early advice may be useful in Victorian estates.
- Take care before distributing or giving away estate assets. Executor personal exposure can arise from breach of duty, unauthorised dealing, premature distribution or errors in the statutory order of priority on an insolvent estate; timing considerations and any protective periods depend on the claim and applicable law.
- Do not sell or transfer property before authority is clear. A dealing with property in the deceased's sole name typically requires probate or letters of administration and a formal transmission application before transfer or settlement. In some circumstances a contract may be entered before grant; take advice on the sequencing.
- Do not assume the first Will found is the final Will. Check for a later Will at the solicitor, the safe deposit, the will bank, home paperwork and in electronic form. Acting on an earlier Will and later finding a superseding Will can be difficult to unwind.
- Do not disregard executor authority. An executor's authority arises under the Will; an administrator's authority arises on the grant. Family members who act without authority can create real risk.
- Take care before making firm promises to beneficiaries. Statements made in the first fortnight — about a car, jewellery, the family home, a business interest — can become difficult to walk back. It is usually prudent to defer commitments until the Will and estate position are understood.
- Do not pay estate debts personally without advice. Estate debts are debts of the estate. Paying from personal funds without documentation, or preferring one creditor where the estate might be insolvent, can create a reimbursement or priority-error exposure.
- Do not empty or close bank accounts without checking authority and beneficial ownership. Joint accounts, superannuation, life insurance and some pension entitlements do not always pass under the Will. Withdrawing funds informally can create legal exposure.
- Do not overlook jointly owned property, superannuation or life insurance. These may pass outside the estate — to a joint owner (subject to beneficial ownership questions), a fund trustee's determination or an effective nominee, or a policy beneficiary — and change the picture before probate is considered.
- Do not delay securing the home, valuables, vehicles, pets and important documents. An unsecured home is exposed to loss and disputes about what was present at death. Pets and perishable assets need immediate arrangements.
- Do not overlook a possible family provision claim. Part IV of the Administration and Probate Act 1958 (Vic) contains closed categories of eligible persons and category-specific conditions. Eligibility alone does not establish entitlement. See our family provision claims guide.
- Do not lodge probate based on incomplete information. Errors in the affidavit of assets and liabilities, or in the description of the deceased, can create rework and exposure for the executor.
- Do not let family conflict escalate without written records and advice. Keep decisions in writing. A person who has possession and control of a deceased person's Will must allow the persons listed in section 50 of the Wills Act 1997 (Vic) to inspect the Will and make copies at their own expense. Take advice at the first sign of serious disagreement rather than after positions have hardened.
What to Do First Instead
The immediate priorities are practical. Work through the following list in the order it makes sense for the family:
- confirm the death has been properly certified or reported;
- locate the latest Will and any codicils, and any enduring powers of attorney (any authority under an enduring power of attorney ends on death and the document should not be used thereafter);
- identify the named executor and confirm they are willing and able to act;
- secure the deceased's home, vehicles, valuables, business premises and important documents;
- notify close family appropriately, and coordinate a single point of contact for third parties;
- speak with a funeral director and confirm who is arranging and paying for the funeral;
- obtain the death certificate from the funeral director in due course (timing varies);
- list the deceased's assets and liabilities in a simple schedule, including joint assets, superannuation, life insurance and business interests;
- obtain legal advice before making any distribution, sale, transfer or contested decision.
Funeral Arrangements in Victoria
Where there is a valid Will, the executor ordinarily has the primary right and duty to arrange disposal of the body in Victoria. Where there is no Will, or where a dispute arises, the position is fact-sensitive. Reasonable funeral costs are ordinarily a proper expense of the estate and, subject to authority and documentation, may be reimbursed from the estate. Family disagreement about cremation, burial location, service or headstone is best addressed in writing and with early advice — see our legal requirements for a funeral in Victoria guide.
Probate and Why Executor Authority Matters
Under a valid Will the executor's office and authority arise from the moment of death, and the deceased's title in estate assets vests in the executor by law. Probate is the Supreme Court of Victoria's evidentiary confirmation of that title. Banks, share registries and Land Use Victoria may require probate, letters of administration or an applicable small-estate process before acting on a proposed dealing. The executor can generally secure assets, arrange the funeral, notify agencies and preserve records before probate; any proposed distribution, sale or property transfer before grant should be taken on advice. Authority under an enduring power of attorney ends on death and the document should not be used thereafter. Start here:
- probate in Victoria — what probate is and how to obtain it;
- letters of administration in Victoria — for estates where there is no will;
- what happens if someone dies without a will in Victoria;
- acting as executor without probate — narrow situations only;
- the duties of an executor in Victoria.
When Urgent Legal Advice Is Needed
Get advice within days, not weeks, where any of the following apply:
- there is disagreement about who the executor is or whether the will is valid;
- a person referred to in the eligible-person categories in Part IV of the Administration and Probate Act 1958 (Vic) has been left out — eligibility is not the same as entitlement;
- a business, farm, family trust, self-managed superannuation fund or company is involved;
- property is in joint names, in a company or in a trust;
- the estate may be insolvent or has significant tax exposure;
- a family member is pressuring the executor to release assets or make an early distribution;
- a person has died overseas or held assets outside Victoria;
- a family provision or estate litigation risk is likely — see our estate litigation and TFM claims service page.
For general assistance with probate and administration see our probate and estate administration service page.
Frequently Asked Questions
What should you not do immediately after someone dies?
It is generally prudent not to distribute assets, sell property, close accounts, make firm promises to beneficiaries, or sign documents before the Will, the identity and authority of the executor, and the estate position are understood. Decisions made in the first few weeks — before the full asset, liability and beneficiary picture is known — can be difficult and expensive to unwind.
Does the executor have any authority before probate is granted?
Yes. Under a valid Will, the executor's office and authority arise from the moment of death; the deceased's title in estate assets vests in the executor by law. Probate is the Supreme Court of Victoria's evidentiary confirmation of that title. Banks, share registries and Land Use Victoria may require probate, letters of administration or an applicable small-estate process before acting on a proposed dealing. Steps such as arranging the funeral, securing the home and assets, dealing with pets and perishables, notifying agencies and preserving records can generally proceed without a grant. Any proposed distribution, sale or property transfer before grant needs specific legal advice.
Can family members access the deceased's bank accounts?
Not without authority or the asset holder's process. Accounts held in joint names may pass to the surviving joint holder by survivorship as to legal title, though banks may require a death certificate and beneficial ownership questions can arise on the facts. Sole accounts are commonly frozen on notification of death until the bank sees probate, letters of administration, or (in smaller estates) documents under the bank's own small-estate or funeral-payment process. Withdrawing funds informally, even to pay a funeral or urgent bill, can expose the person to personal liability. Ask the bank what its own process requires; do not use funds informally.
Which assets automatically form part of the estate?
Not all of them. Assets in the deceased's sole name may pass under the Will (or on intestacy), subject to any equitable interests or trusts affecting them. Property held as joint tenants generally passes to the surviving joint owner by survivorship as to legal title, though beneficial ownership can be affected by trust, contribution or contractual issues; property held as tenants in common does not pass by survivorship. Superannuation is dealt with by the fund trustee under the fund deed, any effective binding or non-binding nomination, any reversionary pension, and applicable law; life insurance depends on the policy owner and any effective nomination. Trust assets belong to the trust; company assets belong to the company. The correct treatment is fact-specific.
Do you need probate before doing anything?
Not for every step. Notifying the deceased's bank, superannuation fund, aged-care provider and utilities, securing the home, arranging pets and perishables, locating the Will, notifying Centrelink and dealing with mail generally do not require probate. Whether probate (or letters of administration) is required for a particular dealing depends on legal title, the asset holder's requirements, the transaction and the estate. Some banks and registries operate small-estate procedures. Take advice before dealing with substantial assets.
Who arranges the funeral?
Where there is a valid Will, the executor ordinarily has the primary right and duty to arrange disposal of the body in Victoria. Where there is no Will, or where there is dispute, the position is fact-sensitive and can turn on the facts and applicable principles. Detailed guidance is in our legal requirements for a funeral in Victoria guide.
What happens if you pay the deceased's debts personally?
Debts of the deceased are debts of the estate. Payment from personal funds does not, in itself, create personal liability, but it exposes the payer to a reimbursement risk if the estate turns out to be insolvent, if documentation is inadequate, or if the payment breaches the statutory order of priority for an insolvent estate. Paying one unsecured creditor ahead of others where the estate might be insolvent can also create a personal exposure. Take advice before paying anything material out of personal money.
Do relatives inherit the deceased's debts?
Not merely because of the relationship. A person's debts are ordinarily payable from their estate, and beneficiaries are not personally liable simply because they are a spouse, child or next of kin. Different rules apply where a person has personally guaranteed a debt, held a joint or co-borrowed loan, taken security, or assumed a liability by acting inappropriately as executor. Where the estate may be insolvent, do not distribute or prefer any creditor before obtaining advice.
When should you get legal advice?
Consider early advice — ideally in the first week or two — where the Will is unclear, missing or disputed, where there is family conflict, where a business, farm, trust, company or self-managed superannuation fund is involved, where the estate holds assets outside Victoria, or where a family provision or estate dispute risk may exist.
Probate & Deceased Estates
Not sure what to do first? Talk to us before you do it.
Parke Lawyers helps Victorian families in the first weeks after a death — locating the will, confirming executor authority, securing assets, and steering clear of the mistakes that turn a simple estate into a contested one.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.