Losing a loved one is one of life’s most challenging experiences, often filled with a mix of emotions that make everyday tasks feel overwhelming. If you’ve been named as an Executor or are responsible for managing the deceased’s estate, it’s normal to feel unsure about where to begin.
To help guide you through this process, we’ve outlined the essential steps to take in the weeks following a loved one’s passing. This guide aims to clarify your responsibilities and help you move forward with as little stress as possible. Alternatively, it may help with your decision to accept or deny the decision to become an Executor if asked.
Before moving through the steps, if the care and safety of children under the age of 18 is affected, please make emergency care arrangements before proceeding.
Step 1: Locate the Will and notify beneficiaries
If you’re reading this, it means you have likely already located the original Will or a copy of it. If the Will is a copy, and contains details of our law firm, we likely hold the original Will.
Step 2: Organise the death certificate
To proceed with the legal process, you must obtain a death certificate from The Registry of Births, Deaths and Marriages Victoria. However, in most cases, the funeral director will arrange this for you. Be sure to ask them in your first meeting.
Step 3: Arrange the funeral
Although you don’t need to do it all on your own, it is typically the responsibility of the Executor to manage the funeral arrangements. This usually involves employing the services of a trusted funeral director and/or delegating tasks to other responsible and willing loved ones.
Step 4: Apply for a Grant of Probate
Probate is the legal process that validates a deceased person’s Will and grants authority to the Executor to administer the estate and distribute the assets as intended. A Grant of Probate can only be made by the Supreme Court of Victoria and the vast majority of applications are prepared by lawyers.
Step 5: Locate important estate assets and documents
Some of the documents you may need to manage the estate include certificates of title for any properties, mortgage documents, share and investment certificates, life insurance and other policy documents, or registration papers for any vehicles.
Step 6: Secure the deceased’s property and assets
If the house is now unoccupied, you must ensure the utilities are switched off if needed and the property is secure. This may include getting insurance and/or putting valuables into storage, such as artwork, cars or jewellery.
Step 7: Notify banks, utility companies, etc.
You must let the relevant institutions know that this person has passed away. This may include banks and other financial institutions, insurance companies, internet providers, superannuation providers, utilities and government agencies if applicable, such as Centrelink.
Step 8: Pay outstanding debts
You must ensure all taxes, medical fees, loans and other debts are settled. Payment for this should come out of the estate. If the debts are in excess of the assets, you should seek legal advice before you proceed with this step to avoid personal liability.
Step 9: Sell property and other assets
If your loved one owned real estate or other major assets that need to be sold, it is your responsibility to manage the sale. Please note that real estate that had previously been a principal place of residence and sold within two years of the date on the death do not generally incur tax, but may do so if sold after the two year period.
Step 10: File tax returns
It may be necessary to file further tax returns and this should be done prior to distributing the estate as per the Will, otherwise you may become personally liable for any outstanding tax. To do this, you need to notify the Commissioner of Taxation of the death and then lodge a final personal tax return for the deceased person if they were earning an income above the tax-free threshold prior to their passing. If the estate was earning an income during the administration process of the Will (such as a property receiving rent from tenants), you may also need to lodge an estate tax return (which is separate from the personal tax return).
Step 11: Distribute assets
The final duty in your role as Executor is to distribute the assets to beneficiaries as outlined in the Will. It is likely to be important that this is not done until the time limit to challenge a Will has passed and all tasks required by the ATO have been completed.
FAQs
What if someone challenges the Will?
As the Executor, it is your responsibility to defend the Will against anyone who tries to contest it. Remember, however, that you’re not expected to do this alone. If you find yourself in this situation, contact our office and we’ll inform you of the best course of action for your situation.
What if I don’t want to be the Executor?
Just because you’ve been listed as the Executor doesn’t mean you are legally obliged to fill the duties. Much can happen in the time between agreeing to be an Executor and actually becoming one. To discuss the process or possible implications of renouncing your role, please contact our office.
Am I entitled to compensation for being an Executor?
Administering an estate can be time consuming, especially larger estates. You can apply for Executor’s Commission, which must then be approved in writing by either the Court or the beneficiaries. The amount of compensation is normally calculated as a percentage of the estate’s total value, usually between 0.5% and 2%, depending on the size of the estate and amount of work involved in the administration.
Handling the estate of a loved one can be complex, both practically and emotionally. Remember that you’re not alone. Your loved one entrusted us to create and care for their Will, both at the time of writing and also after their passing. As such, we are here to help and support you in this role. Taking things one step at a time, staying organised and honouring the deceased’s wishes can make this process more manageable. By approaching each stage with care and patience, you can fulfil your responsibilities as Executor in a way that respects your loved one’s memory and supports their beneficiaries.
