What Not to Do Immediately After Someone Dies in Victoria

Twelve Mistakes to Avoid in the First Weeks

The days and weeks after a death are already difficult. They are also when the most expensive legal and financial mistakes tend to be made — usually with the best of intentions. The list below is not exhaustive, but it covers the mistakes we see most often in Victorian estates.

1. Do not distribute or give away estate assets too early. Executor personal liability is greatest before probate, before creditors have been advertised to, and before the six-month family provision window has expired.
2. Do not sell or transfer property before authority is clear. A property in the deceased's sole name generally cannot be sold or transferred without probate or letters of administration and a formal transmission application.
3. 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 is a serious problem.
4. Do not ignore executor authority. Only the executor named in the will (or, without a will, the person granted letters of administration) has authority to deal with the estate. Well-meaning family members who act without authority create real risk.
5. Do not make promises to beneficiaries. Promises made in the first fortnight — about a car, jewellery, the family home, a business interest — are routinely relied on and are notoriously hard to walk back. Say nothing until the will and estate position are understood.
6. Do not pay estate debts personally without advice. Estate debts belong to the estate. Paying from personal funds without documentation, or paying one creditor ahead of others in a possibly insolvent estate, can expose the payer to personal liability.
7. Do not empty or close bank accounts without checking authority and survivorship. Joint accounts, superannuation, life insurance and some pension entitlements do not always pass under the will. Draining an account before authority is confirmed can create both civil and criminal exposure.
8. Do not overlook jointly owned property, superannuation or life insurance. These commonly pass outside the estate — to a joint owner, a binding death benefit nominee, or a life insurance beneficiary — and change the picture materially before probate is even considered.
9. Do not delay securing the home, valuables, vehicles, pets and important documents. An unsecured home is exposed to theft, vandalism and disputes about what was there at death. Pets and perishable assets need immediate arrangements.
10. Do not ignore possible family provision or estate dispute risk. A blended family, an adult child left out, a long carer, an ex-spouse or a dependant can all give rise to a family provision claim under Part IV of the Administration and Probate Act 1958 (Vic). See our family provision claims guide.
11. Do not lodge probate based on incomplete information. Errors in the affidavit of assets and liabilities, or in the description of the deceased, create expensive rework and can expose the executor.
12. Do not let family conflict escalate without written records and advice. Keep decisions in writing, share the will with those entitled to see it, and get advice at the first sign of serious disagreement rather than after positions have hardened.

What to Do First Instead

The immediate priorities are practical, not legalistic. Work through the following checklist 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 known enduring powers of attorney (now spent);
• 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 (usually available two to three weeks after registration);
• 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

In Victoria the executor named in the will has first responsibility for arranging and paying for the funeral. Where there is no will, responsibility usually falls to the next of kin or the eventual administrator of the estate. Reasonable funeral costs are a proper expense of the estate and, subject to authority, can 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

Probate is the Supreme Court of Victoria's confirmation of the executor's authority to deal with the estate. Most asset holders — banks, share registries, superannuation funds, PEXA-registered property — will not release substantial assets without either probate, letters of administration, or their small-estate indemnity process. Attempting to shortcut the process by using an enduring power of attorney (which lapses on death), by pretending the deceased is still alive, or by relying on informal authority creates significant personal exposure. 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;
• an adult child, spouse, de facto partner, stepchild or dependant has been left out;
• 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