What Does an Executor Do? The Executor's Role and Duties in Australia

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.

The Executor Role in Context

Executors are often family members or close friends acting without payment. Some estates are handled by solicitors, trustee companies or a state Public Trustee, who usually charge fees or commission. Disputes, such as family provision claims or challenges to a will's validity, can be slow and costly, and legal costs are often paid from the estate.

What Does a Will Executor Do?

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.

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)

Administrative Tasks (Weeks 2-8)

Valuation Tasks (Weeks 4-12)

Probate Application Tasks

Administration Tasks (Months 3-12)

Distribution Tasks (After Claims Period)

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

The Standard Expected of Executors

Executors are held to the standards of a trustee: act honestly and in good faith, take the care a prudent person of business would take with their own affairs (the principle in Speight v Gaunt), treat beneficiaries impartially, and never profit from the role or deal with estate assets for their own benefit without authority (the self-dealing rule in Keech v Sandford).

Illustrative Examples: What Can Go Wrong, and What Good Practice Looks Like

The examples below are hypothetical. They are not real cases, and they show principles rather than likely amounts or outcomes.

Example 1: Distributing Too Early

Suppose an executor pays each beneficiary their share soon after the grant of probate, without advertising for creditors and without waiting for the family provision claims period to end. If an unknown creditor then comes forward, or a family member makes a successful claim, there may be nothing left in the estate to meet it. The executor can be personally liable for the shortfall and may have to try to recover money from beneficiaries who have already spent it.

Example 2: A Careful Administration

Now suppose a different executor, not a lawyer, takes these steps instead:

Why the Careful Approach Works

Who Can Be an Executor?

Legal Requirements

Who Cannot Be an Executor?

• Anyone under 18 (generally cannot obtain probate)
• Someone who lacks mental capacity
• A corporation that is not a trustee company

Who Makes a Good Executor?

Ideal characteristics:

Common Executor Choices

Appointing Multiple Executors

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:

Executor Selection: Common Mistakes to Avoid

Estate Administration Timeline

Phase 1: Immediate (0-2 Weeks)

Phase 2: Preparation (2-8 Weeks)

Phase 3: Probate (4-12 Weeks)

Complete State-by-State Probate Guide:

Understanding Probate: When Is It Required?

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

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:

See the guide for your state, for example How to Make a Will in Queensland, for the details.

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.

A Practical Order for Paying Debts

In a solvent estate every debt must be paid in full; the order below is a practical sequence, not a legal ranking of creditors. If the estate cannot pay all its debts, special insolvency rules decide who is paid first, so get legal advice before paying anyone.

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:

Worked Example: Debt Payment Order

Estate Assets:

Estate Debts:

Payment Order:

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

Executor Fees and Commission

Are Executors Entitled to Payment?

Commission Guidelines by State

Complete Commission Guide for All Australian Jurisdictions:

Factors Courts Consider When Awarding Commission

Courts assess multiple factors when determining appropriate commission:

Worked Example: Commission Calculation

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

Illustrative only. NSW sets no fixed percentage: the court allows what is just and reasonable for the work done (s86).

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

The figures below are indicative only, not published rates. Fee scales change, so check the current published fees with each provider before relying on them.

Commission vs. Expenses: The Difference

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

When Executors Are Personally Liable

How to Protect Yourself

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

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

NSW Specific Points:

• NSW's 12-month family provision period runs from the date of death, not from the grant
• Online probate system (ORSOnline) is well-developed
• Commission is what the court considers just and reasonable, with no fixed percentage, and the court can reduce commission it considers excessive (s86A)

Victoria

VIC Specific Points:

• Probate fees are scaled by estate value (since 18 November 2024); estates under $250,000 pay no fee
• Commission is capped at 5% and must be just and reasonable
• Claims period runs from grant of probate, not death
• State Trustees VIC often assists with complex estates

Queensland

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

South Australia

SA Specific Points:

• The $100,000 threshold may allow some smaller estates to avoid formal probate
• Commission can be claimed on both capital and income
• Courts apply a multi-factor test for commission

Western Australia

WA Specific Points:

• eCourts Portal allows online lodgement
• Geographic distances can complicate estate administration
• Mining interests and remote property can add complications

Tasmania

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 may be administered informally
• Executors should still wait reasonable period before distribution

Australian Capital Territory

ACT Specific Points:

• Smaller jurisdiction means often faster processing
• Public Trustee and Guardian ACT provides executor services
• Geographic concentration makes administration simpler

Northern Territory

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

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

Administrative Mistakes

Communication Mistakes

Legal and Procedural Mistakes

Investment Mistakes

Among the Most Expensive Executor Errors

These errors can be especially costly to an estate or to the executor personally:

• Distributing before the family provision period expires
• Not identifying a de facto partner or other eligible claimant
• Missing superannuation death benefits
• Miscalculating capital gains tax
• Selling property below value
• Overlooking debts that emerge after distribution
• Legal costs of defending a family provision claim
• Late tax lodgement penalties
• Investment losses from poor management of estate funds
• Proceedings to remove the executor

Warning Signs You're Making Mistakes

When to Seek Professional Help

Knowing when to engage professionals can help avoid costly mistakes and protect you from personal liability.

When Professional Help is Essential

Consider engaging professionals for:

Professional Services: Complete Guide

Costs are indicative only and vary by provider, location and the work involved.

Professional Resources by State

New South Wales

Victoria

Queensland

South Australia

Western Australia

Tasmania

Australian Capital Territory

Northern Territory

National Resources

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

Legislation and Official Resources

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

• New South Wales: Succession Act 2006 (NSW)
• Victoria: Wills Act 1997 (Vic)
• Queensland: Succession Act 1981 (Qld)
• South Australia: Succession Act 2023 (SA)
• Western Australia: Wills Act 1970 (WA)
• Tasmania: Wills Act 2008 (Tas)
• Australian Capital Territory: Wills Act 1968 (ACT)
• Northern Territory: Wills Act 2000 (NT)

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.

Related Guides

• Will Witnesses Requirements Australia – Witness rules
• Executor Fees Australia – Commission and costs
• Probate Process Australia – Court application guide
• Estate Administration After Death – Complete process
• Died Without a Will: Intestacy – What happens without a will

Further Resources

Supreme Courts (Probate)

• Supreme Court NSW – Probate
• Supreme Court VIC – Probate
• Supreme Court QLD – Probate
• Supreme Court SA – Probate
• Supreme Court WA – Probate
• Supreme Court TAS – Probate
• Supreme Court ACT – Probate
• Supreme Court NT – Probate

Public Trustees

• NSW Trustee & Guardian
• State Trustees Victoria
• Public Trustee Queensland
• Public Trustee SA
• Public Trustee WA
• Public Trustee Tasmania
• Public Trustee & Guardian ACT
• Public Trustee NT

Law Societies (Solicitor Referrals)

• Law Society NSW
• Law Institute of Victoria
• Queensland Law Society
• Law Society SA
• Law Society WA
• Law Society Tasmania
• ACT Law Society
• Law Society NT

Government Resources

• ATO – Deceased Estates
• Services Australia – Bereavement
• ASIC – Company Records

Key Takeaways

1. Never distribute before the claims period expires – This is one of the most expensive mistakes executors make
2. Professional advice can prevent costly mistakes – Early guidance is usually cheaper than fixing errors later
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.