Deceased estate administration in Victoria

Estate work does not begin only when a grant issues. Locating the will, arranging the funeral, securing and insuring property, identifying the assets and liabilities, notifying relevant bodies and otherwise preserving the estate can all be attended to beforehand. Where a grant is required, it is then needed as formal evidence of authority to collect, transfer or sell particular assets.

1. 1Identify and secure the assetsBank and share holdings, land, vehicles, personal effects, business interests, refundable accommodation deposits and money owed to the deceased. Insurance and security matter here: an empty property still needs to be insured and maintained.
2. 2Notify and produce the grantBanks, share registries, superannuation funds, the ATO, Centrelink or Services Australia, aged care and retirement village operators, utilities and insurers each have their own process.
3. 3Establish the liabilitiesMortgages, credit cards, personal loans, unpaid tax, aged care fees, funeral expenses and any guarantees. Debts do not simply disappear on death.
4. 4Attend to taxA date of death return may be needed for the deceased, and the estate may have its own obligations while it holds assets.
5. 5Deal with real propertyTransfer to a beneficiary, or sell. Land held solely or as a tenant in common requires the grant and the correct land registry dealing; land held as joint tenants passes to the surviving proprietor by survivorship, and no grant is needed for that dealing.
6. 6Account and distributePrepare estate accounts, retain what is needed for contingencies, and distribute to the people entitled under the will or on intestacy.

Where the deceased was the sole registered proprietor, or held land as a tenant in common, the legal personal representative lodges an application by legal personal representative — commonly called a transmission application — supported by the grant. That records the representative on the title so the land can then be transferred or sold.

Where land was held as joint tenants, the survivor lodges an application by surviving proprietor instead. No grant is needed for that dealing, which is one reason jointly held property is often resolved quickly while the rest of the estate is still being sorted out.

The distinction matters: jointly held land passes by survivorship, while land the deceased owned solely or as a tenant in common requires the grant and a transmission dealing before it can be transferred or sold. Land Use Victoria recommends using a professional to prepare and lodge land transactions, because each dealing has its own evidentiary requirements.

Land transfer duty

The State Revenue Office explains that a transfer of dutiable property is subject to duty unless an exemption applies, and that a transfer made in accordance with the terms of a will or codicil may be exempt under section 42 of the Duties Act 2000. Transfers outside the terms of the will, including transfers on intestacy, are dealt with differently and the evidence required varies. Do not assume "it came from the estate, so there is no duty".

Income tax

The ATO deals with deceased estates in two parts: the deceased's own final position, and the estate's position afterwards. It sets out who can represent a deceased estate, when a date of death return is required, and what must be complete before the final distribution. Capital gains issues can also arise on sale of estate assets, particularly with property and shares.

A legal personal representative who distributes before liabilities and claims are properly addressed can end up personally exposed. Two timing issues deserve particular attention.

• Family provision claims. Under section 99 of the Administration and Probate Act 1958, an application for a family provision order must be made within 6 months after the date of the grant. The Court may extend that period on application, but such an application must be made before the final distribution of the estate.
• Unknown creditors and beneficiaries. Where there is any doubt about who is owed money or who is entitled, this should be resolved before distribution rather than afterwards.

This is why careful administrators keep a reserve, keep records that would satisfy a beneficiary asking questions later, and take advice before an early distribution.

We assist executors and administrators with the administration stage as well as the grant — producing the grant to institutions, dealing with land, working through debts and tax questions with the estate's accountant, preparing accounts, and completing the distribution. If the grant has already been obtained without a lawyer, we can still take over the administration from that point.

If you have not yet applied, start with probate in Victoria or, where there is no will, letters of administration.