The duties of an executor in a Victorian deceased estate

An executor is the person appointed by a will to administer the deceased's estate. In broad terms the executor stands in the shoes of the deceased for the purpose of gathering in assets, paying liabilities and distributing the balance in accordance with the will. The role is a legal appointment, not merely a family courtesy — and it carries personal exposure for mistakes.

Accepting or renouncing the role

A person named as executor is not automatically bound to act. They can renounce probate before intermeddling in the estate. Once they have started acting — organising a funeral, dealing with bank accounts, corresponding with beneficiaries — a renunciation becomes far more difficult. The first decision, then, is whether to accept the role.

Immediate steps

1. Locate the will. The original, not a photocopy. Check safe deposit boxes, home safes, and any solicitor's safe custody register.
2. Arrange the funeral. Reasonable funeral expenses are a proper charge on the estate. Instructions in the will about funeral arrangements are directional, not strictly binding, but they should be followed where practicable.
3. Obtain the death certificate. Ordered from the Victorian Registry of Births, Deaths and Marriages, usually via the funeral director.
4. Secure the assets. Change locks if needed, arrange to redirect mail, ensure insurance remains current on property and vehicles. Insurers should be notified of the death.
5. Notify family and beneficiaries. A short letter identifying the executor, confirming there is a will and indicating that further information will follow, avoids the rumour mill.

Gathering asset information

Compile an inventory of assets and liabilities:

• Real property, with title details.
• Bank accounts and term deposits.
• Superannuation and life insurance policies.
• Shares, managed funds and share registry holdings.
• Business interests, trust interests and company shares.
• Personal effects of value.
• Motor vehicles.
• Debts — credit cards, mortgages, personal loans, tax.

Obtaining probate

Where the assets require it, the executor applies to the Supreme Court of Victoria for a grant of probate. See our separate article on obtaining probate in Victoria.

Paying debts and taxes

Before making any distribution, the executor must pay the debts and any tax liabilities of the estate. This includes:

• Funeral and administration expenses.
• Secured debts, such as mortgages, discharged out of the sale of the secured asset or by transfer subject to the debt.
• Unsecured debts.
• Tax returns for the deceased and for the estate.

The executor should not pay the deceased's personal credit card debts, or family loans, without checking the position first. Some debts do not survive death; some are secured; some may be disputed.

Notice to creditors

Where the executor is uncertain about the existence of unknown creditors, notice to creditors can be published under section 33 of the Trustee Act 1958 (Vic). If claims are not made within the statutory period, the executor can generally distribute the estate without personal exposure to those claims. This is a useful protection when there is any doubt about outstanding liabilities.

Family provision claims

Under Part IV of the Administration and Probate Act 1958 (Vic), certain eligible persons — spouse or partner, child, step-child, dependant — can apply for further provision from the estate. Applications must generally be made within six months of the grant. An executor who distributes before that period has expired can be personally liable if a successful claim is later made.

The practical response: do not distribute the residue during the claim period, or take advice about limited interim distributions.

Distribution

Once debts and taxes are paid, the estate is distributed to beneficiaries in accordance with the will. Specific gifts are given effect first; then the residue is divided among the residuary beneficiaries.

Distributions can be in cash or in specie. A transfer of property to a beneficiary is often effected by a transmission application to Land Use Victoria, followed by a transfer.

Estate accounts

On completion, the executor should prepare estate accounts showing receipts and payments, and provide them to beneficiaries. A beneficiary who accepts the accounts and provides a release gives the executor the certainty of finality.

Executor's exposure

Common sources of executor exposure include:

• Distributing before the family provision claim period has expired.
• Paying debts that were not, on proper analysis, payable.
• Failing to lodge the deceased's or the estate's tax returns.
• Losing or misapplying assets.
• Acting in breach of the terms of the will.
• Preferring one beneficiary over another without proper reason.

Legal advice at the outset — and along the way at difficult decision points — protects the executor as well as the estate.

For assistance acting as executor, see our estate administration service and the broader probate and deceased estates area.

Fiduciary character of the role

An executor holds the estate on trust for the beneficiaries and owes fiduciary duties in that capacity. Those duties include the duty to act honestly and in the best interests of the estate, to keep estate property separate from the executor's personal property, to keep proper records of receipts and payments, to avoid conflicts of interest and duty, and to act with reasonable care and diligence.

Record-keeping and communication

Beneficiaries are entitled to be kept informed about the administration of the estate at appropriate intervals and to receive a set of estate accounts before distribution. Executors who communicate proactively — providing an initial letter after the grant, updates on major steps such as sale of real estate, and a set of estate accounts before final distribution — very rarely face beneficiary complaints. Executors who do not communicate often do.

Practical decision points

• Whether to sell or transfer real estate held by the estate.
• Timing of sale to align with the market and any tax considerations.
• Handling of superannuation death benefits and any interaction with a binding nomination.
• Payment of creditors and priority of estate debts.
• Interim and final distributions to beneficiaries.

Where the executor should seek help

Any executor faced with contested beneficiaries, a family provision claim, an unusual asset, or an estate that is potentially insolvent should seek legal advice early. Executors are entitled to obtain professional advice and charge the cost of that advice to the estate where reasonable, and the small cost of an early consultation is almost always outweighed by the risk of a mistake made without advice.