Being appointed as the executor of a Will is an important legal responsibility. The role involves much more than arranging the funeral or distributing personal possessions to family members.
An executor must identify and protect the deceased person’s assets, deal with liabilities and taxation, obtain probate where required, respond appropriately to claims and distribute the estate according to the Will.
The administration process can take many months and may become complicated where there are business interests, trusts, overseas assets, family disputes or uncertainty about the validity of the Will.
Confirm the Will and appointment
The first step is to locate the original Will and confirm that it is the deceased person’s final valid Will.
The executor should check:
- whether there are later Wills or codicils;
- whether the original document is available;
- who has been appointed as executor;
- whether there is more than one executor;
- whether substitute executors are named;
- what funeral or burial wishes are recorded;
- who the beneficiaries are; and
- whether the Will establishes any trusts.
The executor should avoid writing on, removing staples from or otherwise altering the original Will. Changes to the physical document may need to be explained to the Probate Office.
A person named as executor is not necessarily required to accept the appointment. An executor who does not wish to act should obtain legal advice before dealing with estate assets or taking steps that could amount to accepting the role.
The Supreme Court of Victoria provides a formal process through which an executor may renounce probate where appropriate.
Make immediate practical arrangements
Some matters require attention before probate is obtained.
The executor may need to:
- arrange the funeral;
- secure the deceased person’s home;
- care for pets;
- redirect mail;
- notify insurers;
- preserve valuable or vulnerable property;
- arrange maintenance of real estate;
- identify urgent business responsibilities; and
- obtain the death certificate.
The executor should also ensure that assets remain appropriately insured. Vacant homes, vehicles, businesses and valuable personal property may require specific arrangements after the owner’s death.
The executor should keep records of all expenses paid personally, as properly incurred estate expenses may be reimbursable from the estate.
Identify the assets and liabilities
The executor must establish the financial position of the estate.
Assets may include:
- bank accounts and term deposits;
- real estate;
- shares and managed investments;
- motor vehicles;
- business interests;
- loans owed to the deceased;
- personal possessions;
- cryptocurrency and digital assets;
- intellectual property; and
- interests in companies, partnerships or trusts.
Liabilities may include:
- mortgages;
- credit cards;
- personal loans;
- taxation debts;
- unpaid bills;
- funeral costs;
- business obligations; and
- legal or accounting expenses.
Superannuation and life insurance do not always form part of the estate. Their treatment depends on matters such as ownership, policy terms, nominations and trustee decisions.
The executor should obtain reliable valuations where necessary rather than relying on assumptions or informal estimates.
Parke Lawyers provides a more detailed explanation of executor duties in Victoria, including probate, estate liabilities and distribution.
Determine whether probate is required
Probate is a grant issued by the Supreme Court of Victoria confirming that the Will is valid and that the named executor has authority to administer the estate.
Not every estate requires probate. Whether a grant is needed commonly depends on the type and value of the assets and the requirements of the organisations holding them.
For example, probate may be required before:
- land can be transferred or sold;
- substantial bank accounts can be released;
- investments can be transferred;
- institutions will recognise the executor’s authority; or
- complex estate transactions can be completed.
The Supreme Court explains that, where a deceased person left assets in Victoria, the executor will commonly need to finalise the deceased’s affairs, and a grant may be required before those duties can be completed.
Before applying for probate, the executor must follow the required advertising and court procedures and prepare supporting documents accurately.
Protect and manage estate property
An executor is responsible for preserving estate property until it can be transferred or distributed.
This may involve:
- maintaining insurance;
- securing real estate;
- collecting rent;
- operating or arranging the sale of a business;
- managing investments;
- paying urgent expenses;
- protecting digital accounts;
- recovering money owed to the deceased; and
- preventing assets from being lost, damaged or improperly taken.
The executor should keep estate money separate from personal funds. A dedicated estate account may be appropriate once the executor has the necessary authority.
Executors should not allow beneficiaries to remove property informally before ownership and distribution have been properly determined.
Pay debts and taxation
Estate assets cannot simply be distributed as soon as probate is granted.
The executor must identify and deal with valid liabilities, which may include:
- funeral and administration expenses;
- secured and unsecured debts;
- outstanding income tax;
- tax arising during the administration period;
- council rates and utilities;
- professional fees; and
- business liabilities.
The executor may need to lodge outstanding tax returns for the deceased and taxation returns for the estate. Tax advice may be required where the estate includes businesses, investment properties, capital gains, foreign assets or complex trust interests.
Distributing the estate prematurely can expose the executor to risk if insufficient funds remain to pay debts, tax or valid claims.
Deal with claims and disputes
An executor must remain impartial when disputes arise.
Potential issues may include:
- a challenge to the validity of the Will;
- allegations of undue influence or lack of capacity;
- a family provision claim;
- disagreement about ownership of assets;
- disputes between beneficiaries;
- claims by creditors;
- questions about informal promises made by the deceased; or
- concerns about the executor’s conduct.
The executor’s role is not to favour the beneficiary with whom they have the closest relationship. The executor must administer the estate according to the Will and applicable law while protecting the estate’s interests.
Legal advice should be obtained before distributing assets where a claim has been threatened, commenced or remains reasonably possible.
Keep proper accounts and records
Executors should maintain clear records throughout the administration.
Records should include:
- assets and valuations;
- money received;
- debts and expenses paid;
- property sold or transferred;
- professional fees;
- communications with beneficiaries;
- tax documents;
- distributions; and
- the balance remaining in the estate.
Beneficiaries may ask for information about the administration, and the Court may require an executor or administrator to provide an administration account in appropriate circumstances.
Good records also help protect the executor if decisions or expenses are later questioned.
Communicate with beneficiaries
Beneficiaries should be kept reasonably informed, although the executor must also preserve confidentiality and avoid making premature promises.
Useful communication may include:
- confirming that the Will has been located;
- explaining whether probate is required;
- advising of major delays;
- identifying significant claims or complications;
- providing a general administration timetable; and
- notifying beneficiaries before distributions are made.
Executors should avoid guaranteeing a distribution date before debts, tax and possible claims have been assessed.
Clear, measured communication can reduce misunderstanding and prevent avoidable disputes.
Distribute the estate correctly
Once the executor is satisfied that the estate can safely be distributed, assets must be transferred according to the Will.
Before distribution, the executor should confirm:
- the identity of each beneficiary;
- whether any beneficiary has died;
- whether gifts have failed or are subject to conditions;
- whether a beneficiary is bankrupt or under a legal disability;
- whether a testamentary trust applies;
- whether assets are transferred directly or sold;
- whether sufficient funds remain for final expenses; and
- whether receipts or releases should be obtained.
Particular care is required where beneficiaries are children, where assets are held on trust or where the Will gives the executor discretion.
Parke Lawyers assists executors and families through its wills and estates practice with probate applications, deceased-estate administration and estate disputes.
Executors may be personally exposed
An executor can potentially be held personally responsible where estate assets are mishandled, liabilities are ignored or distributions are made improperly.
Risk may arise if the executor:
- distributes assets too early;
- fails to protect property;
- prefers one beneficiary without lawful justification;
- uses estate money personally;
- fails to keep records;
- ignores taxation obligations;
- sells assets at an improper value; or
- continues despite a serious conflict of interest.
Executors should obtain legal, accounting or taxation advice where the estate is complex or the correct course is uncertain.
Administration requires patience and care
An executor must balance the interests of beneficiaries, creditors and other claimants while complying with the Will and the law.
A careful administration usually involves identifying the estate, obtaining authority where required, protecting assets, resolving debts and claims, maintaining accounts and distributing only when it is safe to do so.
Early professional advice can help an executor avoid costly mistakes and complete the administration efficiently.
This article provides general information only and is not legal advice. Executors should obtain advice appropriate to the Will, the estate assets and the circumstances of the beneficiaries.
