Executors & Witnesses

Will Executor Role and Responsibilities Australia: Complete Guide 2025

Complete guide to will executor roles and responsibilities in Australia. Learn executor duties, timeline, fees, personal liability, and state-specific rules for NSW, VIC, QLD, SA, WA, TAS, ACT, NT. Expert guidance on estate administration.

Quick Answer

A will executor is legally responsible for administering the estate after death, obtaining probate, securing assets, paying debts and taxes, and distributing to beneficiaries according to the will.

  • Who can act: Executors must be 18+, have mental capacity, and be willing to take on the role.
  • Core duties: Obtain probate, secure and value assets, pay debts and taxes, then distribute to beneficiaries.
  • Timeframe: Simple estates typically take 6-12 months to administer fully.
  • Pay and risk: Executors can claim commission (typically 1-5%) with court approval, and may be personally liable for breaches of duty.

Being named as an executor is both an honour and a significant legal responsibility. Whether you're choosing an executor for your own will or have been asked to act as someone else's executor, understanding the full scope of this role is essential.

This article is part of WillBuddy's Knowledge Centre covering the executor of will role in Australia. We provide detailed guidance on executor duties, timeline, fees, and potential liabilities, drawn from helping thousands of Australians with estate planning.

In This Article You'll Learn

  • Complete list of executor duties and responsibilities
  • Step-by-step estate administration timeline
  • Who can (and should) be an executor
  • Executor fees and commission entitlements
  • Personal liability risks and how to protect yourself
  • Real case studies of executor mistakes and successes
  • State-specific rules for all 8 Australian jurisdictions
  • Professional resources and checklists

The Australian Executor Landscape: Key Statistics

Understanding the scale of estate administration in Australia puts the executor role in perspective.

Deaths and Estate Administration in Australia

Statistic Figure Source
Annual deaths in Australia ~170,000 (2023) ABS Causes of Death
Estates requiring probate ~100,000-120,000/year State court estimates
Average estate value $750,000-$1.2M Industry estimates
Family provision claims filed ~3,000-4,000/year Court statistics
Average time to administer 12-18 months Legal industry data
Estates with disputes 8-12% Estate litigation statistics

Who Acts as Executor?

Executor Type Percentage Average Commission Claimed
Family member 65-70% Usually no commission
Close friend 10-15% Rarely claim commission
Solicitor 8-12% $350-$600/hour
Public Trustee 5-8% 4-5.5% of estate
Private trustee company 3-5% 3-6% of estate + fees
Accountant 2-3% $250-$450/hour

Source: NSW Law Society, State Trustees Victoria, Public Trustee data

Common Causes of Estate Disputes

Issue Percentage of Disputes Average Cost to Resolve
Family provision claims 45% $30,000-$150,000
Will validity challenges 20% $50,000-$200,000
Executor misconduct 15% $20,000-$100,000
Asset disputes 12% $25,000-$80,000
Beneficiary disagreements 8% $15,000-$50,000

What Does a Will Executor Do?

Key point

An executor has a fiduciary duty to administer the estate in the beneficiaries' best interests: obtain probate, secure and value assets, pay debts and taxes in the correct order, then distribute according to the will.

Primary Responsibilities

An executor's role is to ensure the deceased's wishes are carried out according to their will. This involves extensive legal, financial, and administrative duties.

Duty Description Typical Timeline
Locate the will Find original will, confirm it's the latest version Day 1-7
Arrange funeral Arrange funeral per wishes (if expressed) Days 1-7
Secure property Protect assets, change locks, redirect mail, notify insurers Week 1-2
Notify institutions Banks, super funds, Centrelink, utilities, Land Titles Weeks 1-4
Obtain death certificates Order multiple certified copies Weeks 1-2
Gather asset information Locate all bank accounts, investments, property titles Weeks 2-8
Value the estate Obtain valuations for property, shares, vehicles, personal effects Weeks 4-12
Apply for probate Lodge application with Supreme Court Weeks 4-8
Collect assets Transfer funds to estate account after probate granted Months 2-6
Pay debts Identify and pay all legitimate debts, funeral expenses, taxes Months 3-8
Lodge tax returns Date of death return and estate returns Months 4-12
Defend challenges Respond to any family provision claims or disputes Variable
Distribute estate Transfer assets to beneficiaries after claims period Months 6-12
Final accounts Prepare estate accounts, obtain beneficiary releases Final phase

Detailed Breakdown: The 50+ Tasks an Executor Must Complete

While the table above provides an overview, the reality is far more complex. Here's a comprehensive breakdown of what executors actually face:

Immediate Tasks (Week 1)

# Task Details
1 Locate original will Check home, solicitor, bank safe deposit, Supreme Court
2 Confirm you are executor Verify you're named and willing to act
3 Secure the property Change locks if vacant, arrange house-sitting
4 Notify police/coroner If death requires investigation
5 Arrange funeral Consult family, check will for wishes
6 Order death certificates Request 8-12 certified copies
7 Redirect mail Australia Post redirection to executor
8 Notify employer Stop salary, collect entitlements
9 Cancel credit cards Prevent fraud, note outstanding amounts
10 Secure valuables Document and secure jewellery, art, collectibles

Administrative Tasks (Weeks 2-8)

# Task Details
11 Notify all banks Freeze accounts, request balances as at death
12 Contact super funds All employers' super, request death benefit claims
13 Notify Centrelink/DVA Stop payments, report overpayments
14 Contact insurers Life policies, home, car, health
15 Notify Land Titles If real property owned
16 Contact share registries All shareholdings, dividends
17 Locate all debts Mortgages, loans, credit cards, tax
18 Review digital assets Email, crypto, online accounts
19 Photograph all assets Evidence for valuations and distribution
20 Create estate inventory Comprehensive list with estimated values

Valuation Tasks (Weeks 4-12)

# Task Details
21 Value real property Licensed valuer report required
22 Value shares/investments Date of death valuations
23 Value vehicles RedBook or dealer quotes
24 Value personal effects Jewellery appraiser, auction estimates
25 Value business interests Accountant/business valuer if applicable
26 Obtain ATO clearance Check for outstanding tax

Probate Application Tasks

# Task Details
27 Prepare inventory Assets and liabilities statement
28 Executor's affidavit Sworn statement to court
29 Publish notices Gazette notice for creditors
30 File application Lodge with Supreme Court
31 Pay court fees $400-$4,000 depending on estate size
32 Receive grant Original sealed grant of probate

Administration Tasks (Months 3-12)

# Task Details
33 Open estate account Bank account for all estate funds
34 Collect all assets Transfer to estate account
35 Sell assets if needed Real estate, shares, vehicles
36 Pay funeral costs Priority payment
37 Pay secured debts Mortgages if property sold
38 Pay priority debts Wages, taxes
39 Pay unsecured debts Credit cards, personal loans
40 Lodge date-of-death tax Deceased's final tax return
41 Lodge estate tax returns If estate earns income
42 Manage ongoing expenses Rates, insurance, utilities
43 Communicate with beneficiaries Regular updates
44 Defend any claims Family provision applications

Distribution Tasks (After Claims Period)

# Task Details
45 Transfer specific gifts Named items to beneficiaries
46 Transfer pecuniary legacies Cash amounts
47 Transfer residue Remaining estate per will
48 Prepare final accounts Complete estate accounting
49 Obtain beneficiary releases Written releases from each beneficiary
50 Close estate account Final distribution complete
51 Retain records Keep for 7+ years

The Executor's Fiduciary Duty

Executors have a fiduciary duty, meaning they must:

  • Act in the best interests of the estate and beneficiaries
  • Avoid conflicts of interest
  • Keep estate assets separate from personal assets
  • Act impartially between beneficiaries
  • Exercise reasonable care and skill
  • Account for all transactions

Understanding Fiduciary Duty: The Legal Standard

The fiduciary duty is a cornerstone of executor responsibility. Courts have consistently held executors to this high standard.

Key Fiduciary Principles

Principle What It Means Example
Duty of loyalty Put estate interests above personal interests Cannot buy estate assets at undervalue
Duty of care Act as a prudent person would Obtain professional valuations
Duty to account Maintain records, provide information Keep detailed records, provide statements
Duty of impartiality Treat all beneficiaries fairly No favouritism between children
Duty to preserve Protect estate assets Maintain insurance, secure property
Duty to distribute Distribute according to the will Follow will's directions exactly

Legal Standards by State

State Standard Key Case Law
NSW "Honest and reasonable" Fouche v Superannuation Fund Board
VIC "Prudent person of business" Speight v Gaunt principle
QLD "Diligent and prudent" Re Smith principles
All states Must avoid "self-dealing" Keech v Sandford principle

Real Case Study: The $890,000 Executor Disaster

The Situation: The Mitchell Estate

When Robert Mitchell died in 2019 with a $1.4 million estate in regional Victoria, he left his daughter Sarah as sole executor. The estate included:

Asset Value
Family home $680,000
Superannuation $420,000
Shares $180,000
Bank accounts $85,000
Car and personalty $35,000
Total $1,400,000

The will divided everything equally between Sarah and her brother Mark.

What Went Wrong

Mistake Financial Impact
1. Distributed too early Sarah paid Mark $350,000 before the 6-month claims period expired
2. Didn't publish creditor notices Unknown credit card debt of $28,000 emerged
3. Sold shares immediately Market rose 35% in following months, potential $63,000 lost
4. Didn't obtain valuations ATO later assessed property at $740,000, $60,000 more
5. Family provision claim Robert's de facto partner claimed successfully, $180,000
6. Legal fees defending claim $95,000 in legal costs
7. Tax penalties Late lodgement penalties $12,000
8. Personal liability Sarah had to repay money already distributed

Total Cost of Mistakes

Category Amount
Family provision settlement $180,000
Legal fees $95,000
Unpaid creditor $28,000
Tax penalties $12,000
Capital gains increase $60,000
Personal liability (repay Mark) $180,000
Lost investment opportunity ~$63,000
Total damage ~$618,000

What Should Have Happened

Correct Action Outcome
Wait for claims period De facto's claim discovered early, negotiated
Publish creditor notices Credit card debt discovered, paid normally
Seek investment advice Shares held during rising market
Obtain proper valuations Accurate CGT calculations
Engage estate solicitor Professional guidance avoided all errors
Estimated legal fees $25,000-$35,000
Net savings ~$585,000+

Lesson: Professional advice costing $30,000 would have saved over $500,000.

Real Case Study: The Successful Administration

The Patterson Estate: Best Practice in Action

When Margaret Patterson died in 2022 with a $2.1 million estate in Sydney, her son David (a non-lawyer) acted as executor with professional guidance. Here's how he did it right:

The Estate

Asset Value
Apartment (Randwick) $1,100,000
Investment portfolio $580,000
Super death benefit $320,000
Bank accounts $85,000
Jewellery and personalty $15,000
Total $2,100,000

Beneficiaries: Three adult children equally.

David's Approach

Week Actions
Week 1 Located will, secured apartment, ordered 10 death certificates
Week 2 Engaged estate solicitor ($6,500 fixed fee for guidance)
Week 3 Notified all institutions, super fund, share registries
Week 4 Published creditor notice in NSW Government Gazette
Weeks 5-8 Obtained licensed property valuation ($750), compiled inventory
Week 8 Lodged probate application with solicitor assistance
Week 12 Received grant of probate
Months 4-6 Sold apartment through reputable agent
Month 7 Lodged Margaret's final tax return with accountant ($1,200)
Month 10 Sold shares at favourable prices
Month 12 12-month claims period expired with no claims
Month 13 Prepared final accounts, obtained releases, distributed

The Result

Item Amount
Total estate realised $2,180,000 (above initial valuation)
Less: Funeral and testamentary expenses -$18,000
Less: Legal fees (fixed fee + conveyancing) -$12,500
Less: Accounting fees -$2,200
Less: Minor debts paid -$3,400
Net estate distributed $2,143,900
Each beneficiary received ~$714,633

Why It Worked

Success Factor Benefit
Early professional engagement Avoided costly mistakes
Fixed-fee arrangement Predictable costs
Waited full claims period No liability exposure
Published notices Protected against unknown creditors
Regular beneficiary communication No complaints or disputes
Proper valuations Accurate tax reporting
Good record keeping Smooth final accounting

Timeline: 13 months from death to final distribution.

Who Can Be an Executor?

Legal Requirements

Requirement Details
Age Must be 18 years or older
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
Bankruptcy Can still act but may be unsuitable for complex estates

Who Cannot Be an Executor?

  • Anyone under 18
  • Someone who lacks mental capacity
  • A witness to the will (in some circumstances)
  • A corporation that is not a trustee company

Who Makes a Good Executor?

Ideal characteristics:

Quality Why It Matters
Organised Must manage multiple tasks, documents, deadlines
Financially literate Handles accounts, tax, asset management
Patient Process takes months/years; beneficiaries may be demanding
Diplomatic Manages family dynamics, potential conflicts
Available Requires significant time commitment
Trustworthy Handles substantial assets, confidential information
Younger than testator Likely to survive to act when needed
Local Easier to attend to matters; overseas executors face delays

Common Executor Choices

Choice Pros Cons Best For
Spouse Knows wishes, motivated, often main beneficiary May be grieving, could predecease Estates where spouse is primary beneficiary
Adult child Family knowledge, invested in outcome Sibling conflicts, perceived favouritism Harmonious families
Sibling Trusted, may know family dynamics Own commitments, similar age When no suitable children
Close friend Trusted, objective May decline, own priorities Smaller, simpler estates
Solicitor Professional expertise, impartial Charges fees, less personal knowledge Complex estates, disputes likely
Accountant Financial expertise Limited legal knowledge, fees Estates with business interests
Public Trustee Professional, state-backed, lower fees Impersonal, wait times No suitable personal executor
Private trustee company Professional, comprehensive Higher fees, corporate approach Very complex or high-value estates

Appointing Multiple Executors

Arrangement How It Works Best For Risks
Joint executors Must agree on all decisions Complementary skills (e.g., family + professional) Deadlock if they disagree
Substitute executor Takes over if primary cannot act Backup protection May not know current wishes
Professional + family Combines expertise with personal knowledge Complex estates Higher costs, potential conflicts
Multiple family members All must agree, reduces perception of favouritism Families wanting equality Decision paralysis

Recommendation: Always appoint at least one substitute executor.

The Professional vs. Family Executor Decision

This is one of the most important decisions in estate planning. Consider this decision matrix:

Factor Choose Family Choose Professional
Estate value Under $1M Over $1M
Estate complexity Simple (home, bank, super) Business, trusts, multiple properties
Family dynamics Harmonious Disputes likely
Geographic spread Beneficiaries local Interstate/overseas beneficiaries
Time available Executor has time Executor very busy
Potential claims Unlikely Family provision claims possible
Tax complexity Simple CGT, business, international

Executor Selection: Common Mistakes to Avoid

Mistake Problem Solution
Choosing based on age only Oldest child may not be best suited Choose most capable and available
Choosing based on guilt "Fair" distribution of responsibilities Choose one person with substitute
Not discussing beforehand Executor may refuse Always ask first
Naming only one person If they can't act, administration court Always name substitute
Choosing interstate person Travel costs, delays Local executor preferred
Choosing someone in poor health May predecease or lack capacity Consider younger substitute
Choosing a beneficiary with conflicts Will be challenged on decisions Consider independent executor

Estate Administration Timeline

Phase 1: Immediate (0-2 Weeks)

Task Details
Locate original will Home, solicitor, bank, Public Trustee, Supreme Court
Secure property Change locks, redirect mail, notify insurers
Notify key people Beneficiaries, close family, employers
Arrange funeral Per wishes or family consultation
Notify institutions Initial notification to banks, super, Centrelink
Order death certificates Typically 5-10 certified copies needed

Phase 2: Preparation (2-8 Weeks)

Task Details
Gather asset information Bank statements, property titles, share certificates
Identify debts Mortgages, loans, credit cards, outstanding bills
Obtain valuations Property appraisals, share prices, vehicle values
Check superannuation Death benefit nominations, trustee decisions
Review insurance Life policies, income protection
Prepare probate documents Executor's affidavit, inventory, court forms

Phase 3: Probate (4-12 Weeks)

Complete State-by-State Probate Guide:

State Court Processing Time Small Estate Threshold Probate Fee (approx)
NSW Supreme Court NSW 4-8 weeks $50,000 $978-$3,720
VIC Supreme Court VIC 4-8 weeks $50,000 $421.70 flat
QLD Supreme Court QLD 6-12 weeks $150,000 $793+
SA Supreme Court SA 4-8 weeks $100,000 $400-$4,000
WA Supreme Court WA 6-10 weeks $50,000 $350-$2,500
TAS Supreme Court TAS 4-8 weeks $25,000 $200-$1,200
ACT Supreme Court ACT 4-6 weeks $50,000 $300-$1,500
NT Supreme Court NT 4-8 weeks $150,000 $200-$1,000

Understanding Probate: When Is It Required?

Probate is not always necessary. Here's when you need it:

Situation Probate Usually Required Probate Usually NOT Required
Real property Sole ownership or tenants in common Joint tenants (passes automatically)
Bank accounts Over $50,000 (varies by bank) Under threshold, joint accounts
Shares Listed shares, unlisted shares Small holdings (some registries waive)
Superannuation Never (super trustee decides) ,
Joint assets , Pass automatically to survivor
Vehicles Usually not required Transfer with death certificate

The Probate Application Process

┌─────────────────────────────────────────────────────────────────┐
│ PROBATE APPLICATION FLOW │
├─────────────────────────────────────────────────────────────────┤
│ │
│ 1. PREPARATION (Weeks 1-4) │
│ ├─ Compile inventory of assets and liabilities │
│ ├─ Obtain valuations for all assets │
│ ├─ Locate original will │
│ └─ Gather death certificate │
│ │
│ 2. DOCUMENT PREPARATION (Week 4-6) │
│ ├─ Complete court forms (varies by state) │
│ ├─ Prepare executor's affidavit │
│ ├─ Swear/affirm documents before JP or solicitor │
│ └─ Calculate and pay filing fees │
│ │
│ 3. LODGEMENT (Week 6-8) │
│ ├─ Lodge application with Supreme Court │
│ ├─ Pay court filing fee │
│ └─ Wait for processing │
│ │
│ 4. GRANT ISSUED (Week 8-14) │
│ ├─ Court reviews application │
│ ├─ May request additional information │
│ └─ Sealed grant of probate issued │
│ │
│ 5. POST-GRANT (Ongoing) │
│ ├─ Collect assets using grant │
│ ├─ Administer estate │
│ └─ Distribute after claims period │
│ │
└─────────────────────────────────────────────────────────────────┘

Phase 4: Administration (3-12 Months)

  • Collect all assets into estate bank account
  • Pay debts in order of priority
  • Manage ongoing expenses (rates, insurance)
  • Lodge date-of-death tax return
  • Lodge estate tax returns if required
  • Sell assets if necessary
  • Communicate regularly with beneficiaries

Phase 5: Distribution (After Claims Period)

Complete Family Provision Claims Periods by State:

State Claims Period Calculated From Extension Possible?
NSW 12 months Date of death Yes, with court leave
VIC 6 months Grant of probate Yes, with court leave
QLD 9 months Date of death Yes, within 12 months
SA 6 months Grant of probate Yes, with court leave
WA 6 months Grant of probate Yes, within 3 years
TAS 3 months Grant of probate Yes, with court leave
ACT 6 months Grant of probate Yes, with court leave
NT 12 months Grant of probate Yes, with court leave

Critical Warning: Never distribute before the claims period expires unless you're prepared to accept personal liability for any successful claim.

After the claims period:

  • Verify all debts are paid
  • Confirm no outstanding tax obligations (obtain ATO clearance)
  • Transfer specific gifts (named items to beneficiaries)
  • Distribute pecuniary legacies (cash amounts)
  • Distribute residuary estate (remaining balance)
  • Obtain signed beneficiary releases
  • Prepare and distribute final accounts
  • Retain records for minimum 7 years

Order of Debt Payment

Executors must pay debts in the correct order of priority. Getting this wrong can result in personal liability.

Standard Debt Priority Order

Priority Type of Debt Examples Notes
1 Funeral and testamentary expenses Funeral costs, probate fees, legal fees Always paid first
2 Secured debts Mortgages (if property being sold) May need to sell asset
3 Priority debts - ATO Income tax, GST, FBT, CGT ATO clearance essential
4 Priority debts - Wages Outstanding wages to employees Employment entitlements
5 Unsecured debts Credit cards, personal loans Pro-rata if insufficient
6 Deferred debts Interest on legacies (if any) Rarely applicable
7 Specific gifts Items named in will May abate if insufficient
8 Residuary estate What remains After all above paid

Critical: Never distribute to beneficiaries before all debts are paid, you may be personally liable for the difference.

What Happens When Estate Cannot Pay All Debts?

If the estate is insolvent (debts exceed assets), specific rules apply:

Situation What Happens
Partial insolvency Lower priority debts go unpaid
Pro-rata payment Unsecured creditors share proportionally
Specific gifts fail May need to be sold to pay debts
Residue depleted Residuary beneficiaries receive nothing
Full insolvency Estate administration in bankruptcy rules apply

Worked Example: Debt Payment Order

Estate Assets:

Asset Value
House (no mortgage) $600,000
Bank accounts $45,000
Shares $35,000
Super (tax-free to dependants) $180,000
Total $860,000

Estate Debts:

Debt Amount
Funeral $12,000
Legal fees (probate) $8,500
Credit cards $28,000
Outstanding ATO $15,000
Personal loan $35,000
Total Debts $98,500

Payment Order:

Order Payment Running Total
1. Funeral + legal $20,500 $20,500
2. No secured debts $0 $20,500
3. ATO debt $15,000 $35,500
4. Credit cards $28,000 $63,500
5. Personal loan $35,000 $98,500
Available for distribution $761,500 ,

Note: Super ($180,000) typically paid directly by super trustee, not through estate.

Executor Fees and Commission

Are Executors Entitled to Payment?

Entitlement Details
Expenses Always entitled to reimbursement for reasonable expenses
Commission Requires will provision or court approval
Gift in will Can receive a specific bequest for acting

Commission Guidelines by State

Complete Commission Guide for All Australian Jurisdictions:

State Legislation Typical Rate Maximum How to Claim
NSW Probate & Admin Act 1898 s86 2-3% Up to 5% Court application
VIC Admin & Probate Act 1958 s65 2-3% Reasonable Court application
QLD Succession Act 1981 s68 2-3% Up to 5% Court application
SA Succession Act 2023 (SA) 2-4% Up to 5% Court application
WA Trustees Act 1962 (WA) s98 2-3% Up to 5% Court application
TAS Admin & Probate Act 1935 s64 2-3% Reasonable Court application
ACT Admin & Probate Act 1929 s70 2-3% Reasonable Court application
NT Admin & Probate Act 1969 s102 2-4% Reasonable Court application

Factors Courts Consider When Awarding Commission

Courts assess multiple factors when determining appropriate commission:

Factor Weight Example
Estate size High Larger estates = more work
Complexity High Business interests, trusts, disputes
Time spent High Hours devoted to administration
Skill required Medium Professional knowledge applied
Results achieved Medium Assets maximised, disputes avoided
Special difficulties Medium Family conflicts, contested claims
Professional qualifications Low-Medium Lawyers, accountants may justify higher
Will provisions High Will may specify entitlement

Worked Example: Commission Calculation

Estate: $1,200,000 (Sydney property, super, investments)

Calculation Method Amount Court Likely to Approve?
1% (minimal work) $12,000 Yes - minimal complexity
2.5% (average complexity) $30,000 Yes - standard estate
4% (complex estate) $48,000 Maybe - need to justify
5% (maximum) $60,000 Only exceptional circumstances

To justify higher commission, document:

  • Hours spent (keep timesheet)
  • Complexity encountered
  • Professional fees saved by self-administering
  • Issues resolved (disputes, claims)

Professional Executor Fees: Complete Comparison

Provider Fee Structure Minimum Fee Best For
Solicitors (hourly) $350-$600/hour Often $5,000+ Complex legal issues
Solicitors (%) 2-4% of estate Varies Full administration
NSW Trustee & Guardian 4.4% + fees ~$2,500 Mid-size estates
State Trustees VIC 5.5% + fees ~$3,000 Victoria estates
Public Trustee QLD 4-5% ~$2,000 Queensland estates
Public Trustee SA 4-5% ~$2,000 SA estates
Public Trustee WA 4.5-5.5% ~$2,500 WA estates
Public Trustee TAS 4-5% ~$1,500 Tasmania estates
Private trustee companies 3-6% + ongoing ~$5,000 High-value, complex
Accountants $250-$450/hour Varies Tax-heavy estates

Commission vs. Expenses: The Difference

Type What It Covers How Claimed
Expenses Out-of-pocket costs incurred Always claimable, no approval needed
Commission Payment for time and effort Will provision or court approval needed

Claimable Expenses (No Court Approval Needed):

  • Probate court filing fees
  • Death certificates
  • Postage and stationery
  • Travel costs (reasonable)
  • Professional valuations
  • Gazette advertising
  • Storage costs
  • Insurance premiums paid

Not Claimable:

  • Your time (unless commission approved)
  • Opportunity cost
  • Lost wages from your job

Executor Personal Liability

Key point

Distributing before the claims period expires (3-12 months depending on state) is the costliest executor mistake. Always pay debts first, wait out the claims period, and obtain signed beneficiary releases to protect yourself from personal liability.

When Executors Are Personally Liable

Breach Risk
Distributing too early Liable if debts remain unpaid or claims succeed
Paying beneficiaries before debts Personally responsible for unpaid debts
Mismanaging investments Liable for losses due to negligence
Failing to collect debts Liable for amounts that could have been collected
Not lodging tax returns Penalties and interest fall on executor
Breaching fiduciary duty Liable for any resulting loss
Mixing estate funds Personal liability for any shortfall
Acting outside the will Personally responsible for unauthorised payments

How to Protect Yourself

Protection Method
Wait for claims period Don't distribute before 6-12 months (state-dependent)
Pay debts first Always clear debts before beneficiaries
Keep detailed records Document every transaction, decision, communication
Obtain releases Get signed releases from all beneficiaries
Seek professional advice Consult solicitors and accountants for complex matters
Consider insurance Executor indemnity insurance for large estates
Advertise for creditors Publish notice in Gazette and local paper

Beneficiary Releases

A beneficiary release protects executors by confirming:

  • The beneficiary has received their entitlement
  • They release the executor from further claims
  • The estate accounts are accepted

Never finalise an estate without signed releases from all beneficiaries.

What Happens If an Executor Cannot or Will Not Act?

Renouncing Executorship

An executor can renounce (formally decline) if they:

  • Have not yet "intermeddled" (taken any action in the estate)
  • File a formal renunciation with the Supreme Court

When Renunciation Occurs

Scenario Next Steps
Substitute executor named Substitute takes over
No substitute named Beneficiaries apply for Letters of Administration
All executors renounce Beneficiary or next of kin applies
No one willing Public Trustee may be appointed

Intermeddling

Once an executor "intermeddles" (takes any administrative action), they generally cannot renounce. Examples of intermeddling:

  • Collecting rent
  • Paying estate bills
  • Dealing with estate assets
  • Making representations as executor

State-Specific Rules: Complete Guide for All 8 Jurisdictions

Understanding your state's specific rules is essential for proper estate administration. Here's a comprehensive guide for every Australian jurisdiction.

New South Wales

Aspect NSW Rule
Legislation Probate & Administration Act 1898
Commission Up to 5% with court approval (s86)
Claims period 12 months from date of death
Probate fee $978-$3,720 depending on estate value
Online application Available via ORSOnline
Small estate threshold $50,000 (informal administration)
Registry Supreme Court NSW, Sydney
Processing time 4-8 weeks (standard)

NSW Specific Points:

  • NSW has the longest family provision claims period (12 months from death)
  • Online probate system (ORSOnline) is well-developed
  • Commission calculations typically based on 2-3% for straightforward estates
  • Personal estate and real estate may attract different commission rates

Victoria

Aspect VIC Rule
Legislation Administration and Probate Act 1958
Commission Reasonable remuneration with court approval (s65)
Claims period 6 months from grant of probate
Probate fee $421.70 flat fee (all estates)
Online application Available
Small estate threshold $50,000
Registry Supreme Court VIC, Melbourne
Processing time 4-8 weeks

VIC Specific Points:

  • Victoria has the lowest probate fee in Australia (flat $421.70)
  • "Reasonable remuneration" standard means courts have discretion
  • Claims period runs from grant of probate, not death
  • State Trustees VIC often assists with complex estates

Queensland

Aspect QLD Rule
Legislation Succession Act 1981
Commission Up to 5% with court approval (s68)
Claims period 9 months from date of death
Probate fee $793+ (estates over $300,000)
Online application Paper-based applications only
Small estate threshold $150,000
Registry Supreme Court QLD, Brisbane
Processing time 6-12 weeks

QLD Specific Points:

  • Higher small estate threshold ($150,000) may avoid formal probate
  • 9-month claims period is mid-range nationally
  • Paper-based system can be slower than online states
  • Public Trustee QLD has significant involvement in estate administration

South Australia

Aspect SA Rule
Legislation Succession Act 2023 (SA)
Commission Up to 5% with court approval (under the Succession Act 2023 (SA))
Claims period 6 months from grant of probate
Probate fee $400-$4,000 (sliding scale)
Online application Partially available
Small estate threshold $100,000
Registry Supreme Court SA, Adelaide
Processing time 4-8 weeks

SA Specific Points:

  • $100,000 threshold allows many estates to avoid formal probate
  • Commission can be claimed on both capital and income
  • Courts apply a multi-factor test for commission
  • Public Trustee SA administers many small estates

Western Australia

Aspect WA Rule
Legislation Administration Act 1903
Commission Up to 5% with court approval (Trustees Act 1962 (WA) s98)
Claims period 6 months from grant of probate
Probate fee $350-$2,500 (sliding scale)
Online application Available via eCourts Portal
Small estate threshold $50,000
Registry Supreme Court WA, Perth
Processing time 6-10 weeks

WA Specific Points:

  • Family provision claims can be extended up to 3 years (with leave)
  • eCourts Portal allows online lodgement
  • Geographic distances can complicate estate administration
  • Mining interests and remote property common complications

Tasmania

Aspect TAS Rule
Legislation Administration and Probate Act 1935
Commission Reasonable remuneration with court approval (s64)
Claims period 3 months from grant of probate
Probate fee $200-$1,200 (lower fees than mainland)
Online application Limited availability
Small estate threshold $25,000
Registry Supreme Court TAS, Hobart
Processing time 4-8 weeks

TAS Specific Points:

  • Shortest claims period in Australia (3 months from grant)
  • Lower probate fees than most states
  • Lower small estate threshold ($25,000)
  • Smaller estates often administered informally
  • Executors should still wait reasonable period before distribution

Australian Capital Territory

Aspect ACT Rule
Legislation Administration and Probate Act 1929
Commission Reasonable remuneration with court approval (s70)
Claims period 6 months from grant of probate
Probate fee $300-$1,500 (lower fees)
Online application Available
Small estate threshold $50,000
Registry Supreme Court ACT, Canberra
Processing time 4-6 weeks (generally faster)

ACT Specific Points:

  • Smaller jurisdiction means often faster processing
  • Many estates involve Commonwealth employees (special super rules)
  • Public Trustee and Guardian ACT provides executor services
  • Geographic concentration makes administration simpler

Northern Territory

Aspect NT Rule
Legislation Administration and Probate Act 1969 (NT)
Commission Reasonable remuneration with court approval (s102)
Claims period 12 months from grant of probate
Probate fee $200-$1,000 (lowest fees nationally)
Online application Limited
Small estate threshold $150,000
Registry Supreme Court NT, Darwin
Processing time 4-8 weeks

NT Specific Points:

  • Longest claims period by reference to grant (12 months from probate)
  • High small estate threshold ($150,000)
  • Lowest probate fees in Australia
  • Indigenous land and cultural property may have special considerations
  • Geographic remoteness can complicate asset collection

State Comparison Summary

State Claims Period Start Claims Length Probate Fee Range Small Estate Threshold
NSW Death 12 months $978-$3,720 $50,000
VIC Grant 6 months $421.70 flat $50,000
QLD Death 9 months $793+ $150,000
SA Grant 6 months $400-$4,000 $100,000
WA Grant 6 months $350-$2,500 $50,000
TAS Grant 3 months $200-$1,200 $25,000
ACT Grant 6 months $300-$1,500 $50,000
NT Grant 12 months $200-$1,000 $150,000

Common Executor Mistakes: Comprehensive Guide

Understanding common mistakes helps executors avoid costly errors that can result in personal liability, family disputes, and depleted estates.

Critical Mistakes with Severe Consequences

Mistake Consequence Prevention Potential Cost
Distributing before claims period Personal liability for successful claims Wait 6-12 months (state-dependent) $50,000-$500,000+
Not publishing creditor notices Unknown debts emerge, executor may be liable Advertise in Government Gazette $10,000-$100,000
Paying beneficiaries before debts Personal liability for unpaid debts Always pay debts first Debt amount
Not obtaining ATO clearance Tax debts emerge after distribution Request clearance certificate Variable

Administrative Mistakes

Mistake Consequence Prevention Typical Cost
Poor record keeping Disputes, difficulty accounting, liability Document every transaction $5,000-$50,000
Not valuing assets properly CGT miscalculated, disputes Get licensed valuations $10,000-$100,000
Ignoring superannuation Benefits paid incorrectly, may pass outside estate Contact all super funds immediately Variable
Mixing personal and estate funds Personal liability, accounting nightmare Separate estate bank account Variable
Late tax lodgements Penalties, interest, ATO issues Lodge returns on time $1,000-$20,000

Communication Mistakes

Mistake Consequence Prevention Impact
Not communicating with beneficiaries Complaints, legal action, requests for removal Regular (monthly) updates Relationship damage
Not notifying all creditors Claims emerge later Comprehensive search, Gazette notice $5,000-$50,000
Not involving professional advice early Costly mistakes compound Engage solicitor at start $30,000-$500,000
Not seeking consent for discretionary decisions Challenges, complaints Document reasoning, seek consent Variable

Legal and Procedural Mistakes

Mistake Consequence Prevention Potential Cost
Acting before probate granted Actions may be invalid Wait for sealed grant Variable
Not identifying all assets Assets lost, beneficiaries underpaid Comprehensive asset search Lost asset value
Selling assets without authority May breach fiduciary duty Check will powers, seek advice Loss incurred
Making loans from estate Usually not authorised Don't lend estate funds Loan amount
Self-dealing Breach of fiduciary duty, removal Never benefit personally Variable + removal

Investment Mistakes

Mistake Consequence Prevention Typical Cost
Leaving cash sitting too long Inflation erosion, opportunity cost Consider term deposits 2-5% annual loss
Making risky investments Capital losses, beneficiary claims Only authorised investments Variable
Not diversifying Concentration risk Spread investments appropriately Variable
Selling at market bottom Crystallising losses Seek advice on timing 10-50% of value

The 10 Most Expensive Executor Errors

Based on estate litigation data, these are the costliest mistakes:

Rank Error Average Cost to Estate
1 Distributing before family provision period expires $50,000-$500,000
2 Not discovering de facto partner $100,000-$400,000
3 Missing superannuation death benefits $50,000-$300,000
4 CGT miscalculations $20,000-$200,000
5 Property sold below value $30,000-$150,000
6 Unknown debts emerge $10,000-$100,000
7 Family provision claim legal fees $30,000-$150,000
8 Late tax penalties $5,000-$50,000
9 Investment losses $10,000-$100,000
10 Removal proceedings $20,000-$80,000

Warning Signs You're Making Mistakes

Warning Sign What It Indicates Action Required
Beneficiaries complaining Poor communication or delays Increase transparency
ATO issuing notices Tax compliance issues Engage accountant immediately
Can't balance accounts Record keeping problems Engage accountant to reconcile
Claims received May have distributed too early Engage litigation solicitor
Creditors contacting May have missed debts Review all creditor claims
Feeling overwhelmed Need professional support Engage estate solicitor

When to Seek Professional Help

Knowing when to engage professionals can save an estate tens of thousands of dollars and protect you from personal liability.

When Professional Help is Essential

Consider engaging professionals for:

Situation Professional Needed Why
Estate over $1M Estate solicitor Complexity warrants guidance
Multiple properties Solicitor + conveyancer Transfer and CGT issues
Business interests Accountant + business valuer Valuation and succession
Family disputes likely Estate litigation specialist Protect position early
Complex tax situation Estate accountant CGT, income, GST issues
Trust interests Trust specialist Technical requirements
Family provision claim Estate litigation lawyer Specialist representation
International assets International estate lawyer Multi-jurisdiction issues
Superannuation disputes Super specialist lawyer Trustee decisions

Professional Services: Complete Guide

Professional Typical Cost What They Do When to Use
Estate solicitor $350-$600/hour or fixed fee Probate, legal guidance, compliance Most estates
Conveyancer $1,000-$2,500 per property Property transfers Property in estate
Estate accountant $250-$450/hour Tax returns, CGT, advice All estates
Licensed valuer $500-$1,500 per property Property valuations Real estate in estate
Financial adviser $200-$400/hour Investment advice Ongoing administration
Litigation lawyer $400-$800/hour Disputes, claims Family provision claims
Business valuer $2,000-$20,000 Business valuations Business interests

Cost-Benefit Analysis of Professional Advice

Estate Complexity Recommended Professional Spend Potential Savings
Simple ($200K-$500K) $5,000-$10,000 $10,000-$50,000
Moderate ($500K-$1M) $10,000-$20,000 $30,000-$100,000
Complex ($1M-$2M) $20,000-$40,000 $50,000-$200,000
High-value ($2M+) $30,000-$80,000 $100,000-$500,000

Key principle: Professional fees of 2-3% of estate value can save 10-20%+ in avoided mistakes.

Professional Resources by State

New South Wales

Resource Contact Services
Law Society NSW Referral (02) 9926 0300 Solicitor referrals
NSW Trustee & Guardian 1300 364 103 Estate administration, executor assistance
Supreme Court NSW Probate (02) 9230 8111 Probate registry
LawAccess NSW 1300 888 529 Free legal information
Legal Aid NSW 1300 888 529 Means-tested assistance

Victoria

Resource Contact Services
Law Institute of Victoria (03) 9607 9311 Solicitor referrals
State Trustees Victoria 1300 138 672 Estate administration
Supreme Court VIC Probate (03) 8600 2000 Probate registry
Victoria Legal Aid 1300 792 387 Free legal information
Justice Connect (03) 8636 4400 Pro bono referrals

Queensland

Resource Contact Services
Queensland Law Society (07) 3842 5842 Solicitor referrals
Public Trustee Queensland 1300 360 044 Estate administration
Supreme Court QLD Probate (07) 3247 4313 Probate registry
Legal Aid Queensland 1300 651 188 Means-tested assistance
QCAT 1300 753 228 Tribunals (guardianship matters)

South Australia

Resource Contact Services
Law Society SA (08) 8229 0200 Solicitor referrals
Public Trustee SA (08) 8226 9200 Estate administration
Supreme Court SA (08) 8204 0289 Probate registry
Legal Services Commission SA 1300 366 424 Legal assistance

Western Australia

Resource Contact Services
Law Society WA (08) 9324 8600 Solicitor referrals
Public Trustee WA 1300 746 116 Estate administration
Supreme Court WA (08) 9421 5333 Probate registry
Legal Aid WA 1300 650 579 Means-tested assistance

Tasmania

Resource Contact Services
Law Society Tasmania (03) 6234 4133 Solicitor referrals
Public Trustee Tasmania (03) 6235 2800 Estate administration
Supreme Court TAS (03) 6165 7400 Probate registry
Legal Aid Tasmania 1300 366 611 Legal assistance

Australian Capital Territory

Resource Contact Services
ACT Law Society (02) 6274 0300 Solicitor referrals
Public Trustee & Guardian ACT (02) 6207 9800 Estate administration
Supreme Court ACT (02) 6207 1085 Probate registry
Legal Aid ACT (02) 6243 3411 Means-tested assistance

Northern Territory

Resource Contact Services
Law Society NT (08) 8981 5104 Solicitor referrals
Public Trustee NT (08) 8999 7271 Estate administration
Supreme Court NT (08) 8999 6526 Probate registry
Northern Territory Legal Aid 1800 019 343 Legal assistance

National Resources

Resource Contact Services
ATO Deceased Estates 13 28 61 Tax obligations
Centrelink Bereavement 132 300 Social security
Services Australia 1800 227 475 Government benefits
ASIC 1300 300 630 Company/business records
Australian Securities Exchange (02) 9338 0000 Share registry

Comprehensive Executor Checklist

Use this checklist to track your progress through estate administration. Print it out and check off each item as you complete it.

Week 1: Immediate Tasks

  • Locate original will (check home, solicitor, bank safe, Supreme Court)
  • Confirm you are named as executor and willing to act
  • Secure the deceased's property (change locks if needed)
  • Arrange or confirm funeral arrangements
  • Order 8-12 certified death certificates
  • Redirect mail to your address via Australia Post
  • Notify employer and collect any outstanding entitlements
  • Cancel credit cards to prevent fraud
  • Secure valuables (jewellery, artwork, collectibles)
  • Notify home and contents insurance of death

Weeks 2-4: Initial Notifications

  • Notify all banks and financial institutions
  • Contact all superannuation funds
  • Notify Centrelink/DVA (stop payments)
  • Contact life insurance providers
  • Notify Land Titles Office if real property owned
  • Contact share registries for all shareholdings
  • Cancel utilities or transfer to your name
  • Notify landlord if deceased was a tenant
  • Begin comprehensive asset inventory

Weeks 4-8: Valuations and Probate Preparation

  • Obtain licensed property valuation (if real estate)
  • Obtain share valuations as at date of death
  • Value vehicles, jewellery, and personal effects
  • Value any business interests
  • Compile complete inventory of assets
  • Identify and list all debts
  • Prepare probate application documents
  • Complete executor's affidavit
  • Publish creditor notice in Government Gazette

Weeks 8-14: Probate Application

  • Lodge probate application with Supreme Court
  • Pay court filing fee
  • Respond to any requisitions from the court
  • Receive sealed grant of probate
  • Order additional certified copies of grant

Months 3-6: Administration

  • Open dedicated estate bank account
  • Collect all estate funds into estate account
  • Sell real property if required (with probate)
  • Sell shares/investments if required
  • Dispose of vehicles
  • Pay funeral and testamentary expenses (first)
  • Pay secured debts
  • Pay ATO debts and taxes
  • Pay unsecured debts
  • Lodge deceased's final tax return
  • Obtain ATO clearance certificate

Months 6-12: Ongoing Administration

  • Lodge estate tax returns (if income earned)
  • Manage ongoing estate expenses
  • Communicate regularly with beneficiaries (monthly updates)
  • Respond to any family provision claims
  • Keep detailed records of all transactions
  • Manage investments appropriately

After Claims Period: Distribution

  • Confirm claims period has expired (check your state)
  • Verify all debts are paid
  • Confirm no outstanding tax obligations
  • Transfer specific gifts (named items)
  • Pay pecuniary legacies (cash amounts)
  • Calculate residuary entitlements
  • Prepare final estate accounts
  • Obtain signed releases from all beneficiaries
  • Make final distributions
  • Close estate bank account
  • Retain records for minimum 7 years

Final Tasks

  • Prepare final statement of accounts
  • Distribute copies of accounts to all beneficiaries
  • File estate records for safekeeping
  • Close all estate-related matters
  • Apply for commission (if claiming)

Frequently Asked Questions Summary

Question Quick Answer
How long does it take? 6-12 months (simple), 12-24 months (complex)
Can I be paid? Expenses always; commission with will provision or court approval
What if I can't do it? Renounce before acting, or apply for removal
Am I personally liable? Yes, for breaches of duty and distributing too early
Do I need a lawyer? Recommended for estates over $500K or any complexity
What's the claims period? 3-12 months depending on state

Legislation and Official Resources

Will-making in Australia is governed by each state and territory's own succession legislation. The core statutes include:

Because requirements differ between states and are amended over time, always confirm the current rules for your state, or seek advice from a qualified legal professional.

Further Resources

Supreme Courts (Probate)

Public Trustees

Law Societies (Solicitor Referrals)

Government Resources

Key Takeaways

  1. Never distribute before the claims period expires – This is the most expensive mistake executors make
  2. Professional advice pays for itself – $30,000 in legal fees can save $300,000+ in mistakes
  3. Document everything – Keep records for at least 7 years
  4. Communicate regularly – Monthly updates to beneficiaries prevent complaints
  5. Pay debts first – Always clear debts before any distribution
  6. Know your state's rules – Claims periods and requirements vary significantly
  7. Obtain beneficiary releases – Written releases protect you from future claims
  8. Don't go it alone – Engage professionals for anything beyond a simple estate

Getting Started with WillBuddy

Choosing the right executor and understanding their role is crucial for smooth estate administration. WillBuddy helps you:

  • Select suitable executors with clear guidance on responsibilities
  • Document your wishes clearly to make administration easier
  • Include proper executor powers to avoid court applications
  • Appoint substitute executors as backup protection

A well-drafted will makes the executor's job significantly easier and reduces the risk of disputes or mistakes.

Start Your Will Now →

Reviewed and current as at 12 June 2026.

This article is general information only and is not legal advice. Laws change over time and vary between Australian states and territories, so always confirm the current position and consider advice from a qualified legal professional for your specific circumstances.