Knowledge Centre
Executors and Witnesses in Australia: Who to Choose and What They Do
Comprehensive guide to executor of will Australia roles, executor duties, executor fees, and will witness requirements. Learn who can be an executor, witness rules by state, and executor responsibilities.
Quick Answer
An executor administers your estate after death, collecting assets, paying debts, and distributing to beneficiaries. Choose a trustworthy adult who is organised and willing. Will witnesses should be two independent adults (not beneficiaries) present together when you sign. A court may allow executor commission, capped at 5% in Victoria, WA, Tasmania and the NT, with no fixed percentage in NSW, Queensland, SA and the ACT.
Choosing the right executor and ensuring proper witnessing are two of the most important decisions when making a will. An unsuitable executor can delay estate administration for years, while improper witnessing can invalidate your entire will.
This guide is part of WillBuddy's Knowledge Centre covering the executor of will Australia role, executor duties, and will witness requirements. We provide practical guidance tailored to each state's legislation.
WillBuddy includes signing instructions and checklists to help you get executors and witnessing right the first time, see how the product works.
In This Section You'll Learn
- Who can be an executor in Australia and how to choose wisely
- Complete list of executor duties and responsibilities
- Executor fees and commission entitlements by state
- Will witness requirements and common mistakes
- State-by-state differences for NSW, VIC, and QLD
Featured Guides in This Pillar
- Will Executor Role & Responsibilities – Complete executor duties guide
- Will Witnesses Requirements Australia – Witness rules by state
- Executor Fees Australia – Commission and charging guide
Understanding the Executor Role
What Does an Executor Do?
An executor (also called a "personal representative") is the person you appoint to:
| Duty | Description |
|---|---|
| Locate the will | Find the original will and confirm it's the most recent version |
| Apply for probate | Obtain legal authority from the Supreme Court to act |
| Secure assets | Protect property, collect funds, manage investments |
| Pay debts | Settle all legitimate debts, including taxes |
| Distribute estate | Transfer assets to beneficiaries per the will |
| Keep records | Maintain detailed accounts of all transactions |
| Defend claims | Respond to family provision or other challenges |
Executor Timeline
| Phase | Typical Duration | Key Tasks |
|---|---|---|
| Immediate (0-2 weeks) | Days | Locate will, secure property, notify institutions |
| Probate application (2-8 weeks) | 4-12 weeks | Prepare documents, lodge with Supreme Court |
| Administration (2-12 months) | Variable | Collect assets, pay debts, manage investments |
| Distribution (after debts cleared) | 2-4 weeks | Transfer assets, obtain releases from beneficiaries |
| Final accounts | Ongoing | Prepare final estate accounts, tax returns |
Note: Complex estates with property sales, business interests, or family provision claims can take 2-3+ years.
Who Can Be an Executor?
Legal Requirements
| Requirement | Details |
|---|---|
| Age | Generally 18 or older to take out probate (in SA, 18 is required, s56) |
| Mental capacity | Must have capacity to understand and perform duties |
| Willingness | Must be willing to act (can renounce if unwilling) |
| Residency | No legal requirement, but overseas executors face practical difficulties |
| Criminal record | No automatic disqualification, but may affect suitability |
Who Makes a Good Executor?
Ideal qualities:
- Organised and detail-oriented
- Financially literate
- Patient and diplomatic (especially with family dynamics)
- Available and willing to commit significant time
- Trustworthy and ethical
- Younger than you (to ensure availability)
Executor Options
| Option | Pros | Cons |
|---|---|---|
| Spouse/partner | Knows your wishes, motivated | May be grieving, could predecease |
| Adult child | Family knowledge, invested | Family conflicts, perceived favouritism |
| Sibling/friend | Trusted, objective | Own commitments, may decline |
| Solicitor | Professional expertise, impartial | Charges fees, may not know family |
| Accountant | Financial expertise | Limited legal knowledge, fees |
| Public Trustee | Professional, state-backed | Fees, impersonal service |
| Private trustee company | Professional, comprehensive | Higher fees, corporate approach |
Multiple Executors
You can appoint:
- Joint executors – Must act together and agree on decisions
- Substitute executor – Acts if first choice cannot or will not serve
- Professional + family – Combines expertise with personal knowledge
Recommendation: Appoint at least one substitute executor in case your primary choice predeceases you, becomes incapacitated, or renounces.
Executor Duties in Detail
Before Death (If Executor Knows)
- Know where the will is stored
- Understand the testator's wishes
- Be aware of significant assets and beneficiaries
Immediately After Death
| Task | Timeline | Details |
|---|---|---|
| Locate original will | Day 1-2 | Check home, solicitor, Public Trustee, Supreme Court |
| Arrange funeral | Days 1-7 | Per wishes in will or family consultation |
| Secure property | Immediately | Change locks, redirect mail, notify insurers |
| Notify institutions | Week 1-2 | Banks, super funds, Centrelink, utilities |
| Obtain death certificates | Week 1-2 | Order multiple certified copies |
Probate Application
| Step | NSW | VIC | QLD |
|---|---|---|---|
| Court | Supreme Court NSW | Supreme Court VIC | Supreme Court QLD |
| Typical fee | $978 (estates $100k-$250k) | $421.70 (all estates) | $793 (estates $300k+) |
| Timeline | 4-8 weeks | 4-8 weeks | 4-12 weeks |
| Small estate threshold | $50,000 | $50,000 | $150,000 |
Ongoing Administration
- Collect all assets and transfer to estate account
- Pay funeral expenses, debts, and liabilities
- Lodge tax returns (date of death and estate)
- Manage investments and property
- Communicate with beneficiaries
- Keep detailed records of all transactions
Distribution
- Consider the family provision time limit, which varies by state (for example 6 months from the grant in Victoria, 12 months from death in NSW, 9 months from death in Queensland)
- Clear all debts before distribution
- Obtain releases from beneficiaries
- Transfer specific gifts
- Distribute residuary estate
- Prepare final accounts
Executor Fees and Commission
Are Executors Entitled to Payment?
Executors are entitled to:
- Reimbursement – All reasonable expenses incurred
- Commission – Payment for time and effort (requires court approval or will provision)
Commission Guidelines by State
| State | Legislation | Typical Commission | Court Discretion |
|---|---|---|---|
| NSW | Probate & Admin Act 1898 (s86) | No fixed percentage; just and reasonable | Yes, and can reduce excessive commission (s86A) |
| VIC | Administration & Probate Act 1958 (s65) | Up to 5% of estate | Yes, as is just and reasonable |
| QLD | Succession Act 1981 (s68) | No fixed percentage | Yes, as the court thinks fit |
Factors Affecting Commission
- Size and complexity of estate
- Time and effort expended
- Skill and responsibility required
- Success of administration
- Any provision in the will
Professional Executor Fees
| Provider | Typical Fee Structure |
|---|---|
| Solicitors | Hourly rate ($300-$600/hour) or percentage (2-4%) |
| Public Trustee | Percentage (typically 4-5.5%) + fees |
| Private trustee companies | Percentage (3-6%) + ongoing fees |
Tip: If appointing a professional executor, request a fee estimate in writing before finalising your will.
Will Witness Requirements
Essential Requirements (All States)
| Requirement | Details |
|---|---|
| Number | Two witnesses required |
| Age | No Act sets a minimum age; adults are best practice |
| Capacity | Must be able to see you sign and attest to it |
| Presence | Must be present together when testator signs |
| Observation | Must see testator sign the will |
| Signing | Must sign in testator's presence; signing in each other's presence is best practice (required in the ACT, s9) |
| Independence | Should not be beneficiaries or spouses of beneficiaries |
Who Should NOT Be a Witness?
| Avoid As Witness | Reason |
|---|---|
| Beneficiaries | Gift to witness may be void (NSW, QLD, TAS, NT) |
| Spouse of beneficiary | Avoid for independence; rules on partners of beneficiaries vary by state |
| Executor | Creates conflict (though legally permitted) |
| Family members receiving gifts | Gift may fail |
| People lacking capacity | Will may be challenged |
Ideal Witnesses
- Neighbours (not receiving gifts)
- Work colleagues
- Family friends
- Bank staff or Post Office staff
- Medical professionals (GP, nurse)
- Solicitors or legal staff
State-Specific Witness Rules
| Aspect | NSW | VIC | QLD |
|---|---|---|---|
| Legislation | Succession Act 2006 ss 6-10 | Wills Act 1997 ss 7-11 | Succession Act 1981 ss 10-16 |
| Beneficiary witness | Gift is void unless an exception applies (s10) | Gift is NOT void (s11) | Gift is void unless an exception applies (s11) |
| Court can save gift? | Yes, or if two other witnesses receive nothing, or those affected consent | Not needed | Yes, or if two other witnesses receive nothing, or those affected consent |
| Electronic witnessing | Permitted by audio-visual link (Electronic Transactions Act 2000 Part 2B) | Permitted under s8A with a special witness | No procedure; sign in person |
Proper Witnessing Procedure
Step-by-Step Process
- Gather everyone together
- Testator + both witnesses in same room
- All must be present throughout
- Testator signs first
- Sign at the foot/end of the will
- Witnesses watch testator sign
- First witness signs
- Signs while testator and second witness watch
- Signs attestation clause
- Second witness signs
- Signs while testator and first witness watch
- Signs attestation clause
- Complete attestation
- Witnesses print their names
- Add addresses and occupations (recommended)
Common Witnessing Mistakes
| Mistake | Problem | Prevention |
|---|---|---|
| Witnesses sign separately | Will may be invalid in the ACT (s9) | All three sign together |
| Beneficiary witnesses | Gift to witness fails | Use independent witnesses |
| Not witnessing signature | Will may be challenged | Watch testator sign |
| Forgetting attestation | Probate complications | Complete all fields |
| Using minors | No Act sets a minimum age, but a minor may be a poor witness later | Use adults |
State Differences Summary
New South Wales
- Executor legislation: Probate & Administration Act 1898
- Witness legislation: Succession Act 2006
- Commission: Just and reasonable, no fixed percentage, with court approval (s86)
- Beneficiary witness: Gift void unless an exception applies, including a court order (s10)
- Guide: How to Make a Will in NSW
Victoria
- Executor legislation: Administration and Probate Act 1958
- Witness legislation: Wills Act 1997
- Commission: Up to 5%, as is just and reasonable, with court approval (s65)
- Beneficiary witness: Gift is not void (s11)
- Guide: How to Make a Will in Victoria
Queensland
- Executor legislation: Succession Act 1981
- Witness legislation: Succession Act 1981
- Commission: As the court thinks fit, no fixed percentage (s68)
- Beneficiary witness: Gift void unless an exception applies, including a court order (s11)
- Guide: How to Make a Will in Queensland
When Executors Can Renounce
An executor can decline to act by:
- Renouncing – Filing renunciation before taking any action
- Not applying – If substitute executor or beneficiary applies instead
Once you "intermeddle" (take any action in administering the estate), you generally cannot renounce.
Related Guides
- Will Executor Role & Responsibilities – Complete duty breakdown
- Will Witnesses Requirements – Detailed witness rules
- Executor Fees Australia – Commission and costs
- Probate Process Australia – Court application guide
- Estate Administration After Death – Full administration process
Further Resources
- NSW Trustee & Guardian
- State Trustees Victoria
- Public Trustee Queensland
- Law Society of NSW – Find a Solicitor
Getting Started with WillBuddy
WillBuddy helps you appoint the right executor and ensure proper witnessing with our guided process. Our checklists and signing instructions help you get it right the first time.
How to Remove an Executor of a Will in Australia
Can you remove an executor in Australia? Learn the court grounds, the steps by state, the options before court, and how to name a better executor in your own will.
How to Change the Executor in Your Will
Want a new executor in your will? Learn when a new will beats a codicil, how to choose a replacement, and what changes after death. Australian guide.
Executor Age Requirement in Australia: Who Can Act
You must be 18 or older to act as an executor in Australia. Learn what happens if you name a minor, how it works by state, and how to choose well.
Backup Executor in a Will: How to Name One in Australia
A backup executor steps in if your first choice dies or can't act. Learn how to word the clause, who to pick and what changes by state in Australia.
Multiple Executors: Can You Have Two or More in Your Will?
Yes, you can name more than one executor in your will. See how co-executors work in Australia, when it helps, when it backfires, and how to plan for a replacement.
Choose a Will Executor in Australia: Match Their State to Your Assets
Choose a will executor with time for paperwork and name a backup. Favor someone in the state where most assets sit. WillBuddy records executor details.
Sign It Right: Make a Valid Simple Will in Australia, 2 Witnesses
How to make a simple will in Australia: who can make one, what to include, and how to sign it in front of two witnesses so it meets your state’s rules.
Executor Fees in Australia: What an Executor Can Be Paid, State by State
Complete guide to executor fees in Australia. State-by-state commission rates, what expenses executors can claim, court approval process, and when professional executors charge fees.
Who Can Witness a Will in Australia? The Rules, State by State
Complete guide to will witnesses requirements in Australia. Learn who can witness a will, witnessing process, state-specific rules, and common mistakes that invalidate wills.
What Does an Executor Do? The Executor's Role and Duties in Australia
This content is general information only and is not legal advice. Estate planning laws vary between Australian states and territories, so consider seeking advice from a qualified legal professional for your specific circumstances.