Deceased Estate Administration in Victoria
When a person dies in Victoria, someone must take legal responsibility for the deceased estate administration. It can seem like a daunting task, as the duties are many and complicated. There are complex rules that govern this process, recorded in both common law and legislation such as the Administration and Probate Act 1958. Few people learn about the process of deceased estate administration until they need to do so following the death of a loved one. This article aims to provide a starting point to demystify the process of deceased estate administration in Victoria.
Deceased Estate Administration in Victoria
In Victoria, there are two types of personal representative that assume responsibility for deceased estate administration: executors and administrators. A testator (someone writing a will) appoints an executor in their will to supervise the estate administration. This is a person that the testator trusts to ensure their last wishes are carried out. The Supreme Court of Victoria appoints an administrator to manage the estate administration of a deceased, usually when there is no will and therefore no nominated executor. The duties of the executor and the administrator are largely identical, except that an executor has a will to guide the distribution of the estate, while an administrator will usually be directed to comply with the rules of estate distribution set out in legislation.
Deceased Estate Administration in Victoria: Duties
The duties of an executor and administrator include the collection of the assets and debts of the deceased for an Inventory of Assets and Liabilities, which must be filed with the Supreme Court. The personal representative must pay these debts, including any tax liabilities, and then distribute the residual estate to the deceased’s beneficiaries.
The main responsibility of deceased estate administration is to protect the estate against loss or challenge until the deceased’s assets can be distributed to the beneficiaries. The executor must insure any property and secure valuables during probate. If a beneficiary feels that the personal representative has been negligent in their duties, they can file a complaint with the Supreme Court of Victoria.
The administrator or executor must follow the testator’s wishes as closely as possible as long as they are in keeping with the laws of estate administration in Victoria. For example, if an estate has heavy debts, then bequeathed assets may have to be sold instead of gifted as the testator intended.
Deceased Estate Administration in Victoria: Executor
The testator can employ a professional (usually a solicitor or the Public Trustee) to administer their estate or appoint a friend or relation to assume the responsibility. Sometimes the person named in the will as executor is not suitable for the role. For instance, the executor may have been named many years before, and no longer have the capacity to discharge the duties. In other circumstances, the nominated executor may not be available because they pre-deceased the testator.
There are also instances when an executor named in a will does not want to assume the responsibilities of deceased estate administration. This is most likely to occur when a testator nominates someone as executor without first consulting with them, or when the nominated person has a serious change in circumstance between agreeing to act and the testator’s death. If the named executor does not want to act, then they must renounce the role formally before undertaking any of the duties of deceased estate administration. When one executor renounces their role, any other executor named in the will can continue alone. If the testator nominated no other person as executor in their will, a qualified person may apply to the Supreme Court of Victoria to be granted the authority to act as administrator. The Supreme Court of Victoria will usually grant Letters of Administration to a beneficiary of the estate, such as a spouse or adult child of the deceased. If no beneficiary is prepared to act as administrator, then a creditor of the estate can apply for Letters of Administration.
Deceased Estate Administration in Victoria: Remuneration
Provision can be made in a will for an executor to be paid for assuming the duties of estate administration. If the testator has not made any allowance, the court can make an order that the estate repays outlays that the executor or administrator made while administering the estate.
Deceased Estate Administration in Victoria: Trustee
There is sometimes a need to appoint a trustee to oversee a trust established in the will. This may be required when the will gifts assets to minor children, or perhaps an adult beneficiary with an intellectual disability. In these cases, a trustee’s role will continue beyond the executor’s administration of the deceased estate and will last for as long as the trust endures. The duties of a trustee in relation to deceased estate administration in Victoria are governed by the Trustee Act 1958.
Our wills and estate team can assist you with deceased estate administration and any other legal advice you may need. Please call Armstrong Legal on 1300 038 223 or send us an email to arrange for an appointment.