The executor of a will in NSW administers the deceased’s estate. The work covers the assets, the debts and any tax owed, and what is then distributed to the beneficiaries under the will. For most estates, none of the substantive work proceeds until the Supreme Court of NSW has issued a grant of probate.

A grant confirms the validity of the will and the executor’s authority to act on it.

The legal process is reasonably well-defined. What gives executors trouble more often is the timing of distributions, particularly because of the twelve-month period during which a family provision claim can be made under the Succession Act 2006 (NSW). That period sits behind a number of decisions an executor has to make in the first year, and it is the most common source of personal exposure for executors who have not sought advice early.

What an executor does

The role is the administration of the estate in accordance with the will and the law. Executors derive their duties from common law and from statute, principally the Succession Act 2006 (NSW). The Probate and Administration Act 1898 (NSW) governs the probate process. The Trustee Act 1925 (NSW) applies once the executor is holding estate property on behalf of the beneficiaries.

The work is broadly as follows.

• locating the original will and confirming it is the most recent valid version
• arranging the funeral, with funeral expenses paid from the estate
• securing the deceased’s home and any property at risk during the administration
• preparing an inventory of the assets and the liabilities of the estate, with values
• applying to the Supreme Court of NSW for a grant of probate
• discharging debts, expenses and tax in the correct order before any distribution
• distributing the estate to the beneficiaries in accordance with the will
• maintaining records throughout

Records matter. Where a beneficiary later questions a decision, what an asset was sold for, why a particular debt was paid in priority, when a distribution was made, the executor’s contemporaneous records are usually the best evidence available.

When is probate required in NSW?

Probate is generally required where the deceased held real estate in their sole name. NSW Land Registry Services will not transfer or list a property without one, and in practice, this is the factor that drives most probate applications.

Banks treat the question differently from one another. Some institutions release smaller balances on the production of a death certificate and a certified copy of the will. The threshold varies between banks and is not consistently published. Where the bank requires a grant before releasing funds, probate becomes necessary regardless of the size of the estate.

Probate is also typically required for shares held in the deceased’s sole name (the threshold is generally around $25,000), for superannuation paid to the estate rather than to a nominated dependant, and for life insurance where no beneficiary is named on the policy.

Jointly held assets are different. A house owned with a spouse as joint tenants, or a joint bank account, does not form part of the estate. The deceased’s interest passes to the surviving owner by survivorship and is not affected by the will. Worth confirming the title on any significant asset before assuming probate is required.

What to do before probate is granted

The executor’s authority is technically unproven until the Court issues the grant. Practical steps can still be taken in the meantime, and most need to be, but substantive dealings with estate assets should wait.

Practical steps include arranging the funeral, securing the deceased’s home, ordering the death certificate from Births, Deaths and Marriages NSW, redirecting mail, and notifying the bank, the deceased’s superannuation fund, and Centrelink, where the deceased was receiving a pension.

What should not happen pre-probate is anything that disposes of, transfers, or distributes estate assets. Selling the car. Listing the house. Transferring share parcels. Releasing money to a beneficiary who is asking for it. If the will is later challenged, or a more recent will surfaces, anything substantive done beforehand can become a source of personal liability.

Funerals are the standard exception. Most banks will pay a funeral invoice directly from the deceased’s account on production of a death certificate, before probate has been granted.

How to apply for a grant of probate in NSW

Probate applications are made through the Supreme Court of NSW Online Registry. Most executors engage a wills and estates lawyer to prepare the application, although it can be lodged without legal representation.

The first step is the publication of a notice of intention to apply, which goes on the Online Registry and gives creditors and any other interested party fourteen days to come forward. After that period has passed, the application itself is lodged with the Court. The application includes the original will (the paper document, not a copy), the death certificate, an inventory of property setting out the value of each asset and liability, and an executor’s affidavit.

A filing fee applies to the application, calculated by reference to the value of the estate. Estates valued under $100,000 are generally exempt.

A clean application is usually granted within four to eight weeks. The applications that take longer are those that raise an evidentiary issue the Court needs to resolve, such as a handwritten amendment that the Court cannot reconcile against the rest of the will, a missing page, or a witnessing problem. Where the Court asks for further affidavit evidence, the timeline extends accordingly.

Can an executor be held personally liable?

Yes. Executors are fiduciaries. The duties are owed to the estate and to the beneficiaries, and where those duties are breached, the loss can be recovered from the executor personally.

Distributing too early is the most common cause of personal exposure.

Under the Succession Act 2006 (NSW), an eligible person has twelve months from the date of death to bring a family provision claim. The category of eligible persons is wider than is sometimes assumed. It includes spouses and de facto partners (including same-sex partners), and certain former spouses still receiving maintenance. It also includes children, including adult children. Persons who lived with the deceased and were dependent on the deceased financially can also qualify.

If the executor distributes the estate within the twelve-month period and a claim later succeeds, the Court can order the executor to make good the shortfall personally. The fact that the assets have already been paid to the beneficiaries is not a defence.

Other situations where executors commonly incur personal liability:

A debt is left unpaid before distribution. Beneficiaries are paid after creditors and tax obligations are settled. If the Australian Taxation Office is owed money on the deceased’s final return and the residue has already been distributed, the ATO will pursue the executor for the shortfall.

An asset is sold below market value. The classic example is a property sold to a relative for materially less than what an arm’s-length sale would have produced. Beneficiaries can recover the difference from the executor. A written valuation obtained before the sale, kept on file, is the standard protection.

Insurance is allowed to lapse on a vacant property. Policies in the deceased’s name do not always continue automatically after death, and the executor needs to confirm cover is in place during the administration period. Where damage occurs to an uninsured property, the loss falls on the estate, and in some circumstances on the executor.

Estate funds are mixed with personal accounts. A dedicated estate bank account should be opened at the start of the administration. Every receipt and every payment goes through it.

The cause of most of the cases we see, by some margin, is the first one. Distribution within the family provision window because the beneficiaries said they had agreed among themselves. That kind of agreement is not binding on the Court. An executor who relies on it has no protection if a claim later succeeds.

The twelve-month family provision rule

The twelve-month period is significant enough to warrant its own discussion.

A family provision claim is a claim by an eligible person that the will did not adequately provide for them and that the Court should make further provision out of the estate. The Court’s jurisdiction comes from the Succession Act 2006 (NSW). The category of eligible persons in NSW is wide. It captures the obvious cases (spouses, de facto partners including same-sex partners, children including adult children) and a number of less obvious ones, such as former spouses still receiving maintenance, and persons who were members of the deceased’s household and dependent on the deceased financially. The limitation period is twelve months from the date of death, although the Court can extend it.

The implication for the executor is that significant distributions should not generally be made within those twelve months unless the executor is confident no claim will be brought.

What counts as a significant distribution requires judgment. Paying a small specific gift in accordance with the will is normally appropriate at any stage. Distributing the residue of a substantial estate to two of three siblings within months of the date of death, particularly if the third sibling has been treated less favourably under the will or has been excluded entirely, is a different matter.

Where there is any indication that a claim may be brought, such as an exclusion in the will, an apparent imbalance between siblings, or a family member who has expressed dissatisfaction, the executor should obtain advice early. A family provision claim is defended by the executor on behalf of the estate, and what is done in the first six months of the administration tends to shape the conduct of the matter if it does proceed to litigation.

Do executors get paid in NSW?

Generally not. There are three circumstances in which an executor is remunerated, and most appointments do not fall within any of them.

If the will provides for a payment to the executor, for example, a clause stating that the executor is to receive a specific sum or a percentage of the estate, that payment is made in accordance with the will. Most wills are silent on the point.

Where the will is silent, the executor can ask the beneficiaries to consent to the commission. A figure in the order of one per cent of the estate is typical, although it depends on the size and complexity of the work. The agreement should be in writing. Beneficiaries usually agree where the executor has done substantial work and is not also taking a major share of the estate.

The third option is to apply to the Supreme Court of NSW for an executor’s commission for “pains and troubles” under section 86 of the Probate and Administration Act 1898 (NSW). This is slower and more costly than agreement with the beneficiaries. The Court will not generally award commission to an executor who is also a significant beneficiary.

Out-of-pocket expenses are paid from the estate regardless of whether commission is awarded. Legal fees, accountant’s fees, valuations, advertising for creditors, and the funeral itself are all properly payable from estate funds.

Can you renounce the role of executor?

An executor is not obliged to accept the appointment. The mechanism for declining is a renunciation of probate. The form is signed by the executor, filed with the Supreme Court of NSW, and the appointment passes to any substitute executor named in the will, or to an administrator appointed by the Court if no substitute is named.

The point at which an executor needs to decide is before they have started to act on the estate.

Once the executor has begun to deal with the estate, even informally, the Court may treat the appointment as having been accepted by conduct. Examples of conduct that the Court has previously regarded as acceptance include writing to financial institutions on the estate’s behalf, taking possession of estate assets, and signing for the deceased’s mail. Once the appointment has been accepted, withdrawal generally requires a formal application to the Court for the executor’s removal. That is a slower and more expensive process than renunciation at the outset.

Where an executor is undecided, the practical course is to make the decision quickly and not to take any step on the estate’s behalf in the meantime. The will should be reviewed for the substitute executor named (most professionally drafted wills name one). A conversation with the substitute about whether they are willing to act is generally worthwhile before the renunciation is filed. Where there is no substitute and no obvious replacement, NSW Trustee and Guardian can act as executor in some circumstances, although a percentage of the estate is charged for the service.

The reasons people renounce vary. Living overseas. Health. The complexity or contentiousness of the estate. Concerns about exposure to family disputes the executor would rather not be drawn into. None of these is unreasonable, and renunciation is a perfectly proper response to any of them.

When legal advice is appropriate

There are estates that can be administered without legal involvement, typically those with a clean will, no real estate, and beneficiaries who agree among themselves. The position is different in most other cases.

Legal advice is generally appropriate where any of the following applies:

• The estate includes real estate or business interests
• Superannuation forms part of the estate, and the death benefit nomination is unclear
• The will contains handwritten amendments, missing pages, or witnessing irregularities
• A witness to the will is also a beneficiary (which can invalidate the gift to that beneficiary)
• a child has been left out of the will, or treated significantly differently from siblings
• A family provision claim is anticipated
• The deceased had assets overseas or unresolved capital gains issues

Reasonable legal fees incurred in administering the estate are paid from the estate. Where an avoidable error results in a personal liability for the executor, that liability is rarely smaller than the cost of the advice that would have prevented it.

Where to get help

If you have been named as the executor of a will in NSW, the right time to seek advice is before you accept the appointment, not after. Once an executor has begun to act, the available options narrow.

Our team works with executors across NSW on probate applications, estate administration, family provision claims, and renunciation. If your circumstances align with any of the matters discussed in this article, please contact us.

Common questions about being an executor in NSW

How long does it take to administer an estate?

Around twelve months for a straightforward administration. Twelve months is also the family provision limitation period under the Succession Act 2006 (NSW), and most executors hold off on final distributions until that period has run.

Estates with property to sell, complex superannuation, business interests, or contested matters will run longer. Eighteen months is common. The slowest part is usually a third party rather than the executor, such as a superannuation trustee waiting on a binding nomination, an agent on the property sale, or the ATO on a final return.

What happens if there is no will?

Where the deceased dies without a valid will, the estate is administered under the rules of intestacy. The closest eligible relative applies to the Supreme Court of NSW for letters of administration, which is the equivalent court order, and the estate is distributed under the intestacy rules in Chapter 4 of the Succession Act 2006 (NSW).

What is the difference between an executor and an administrator?

An executor takes their authority from the will. An administrator takes their authority from the Court, typically because there is no will, or because the named executor has died, renounced the role, or been passed over. The work each performs in administering the estate is materially the same. The difference lies in the source of the appointment and the corresponding court order, which is a grant of probate for the executor and letters of administration for the administrator.

How is a distribution report prepared?

At the conclusion of the administration, the executor prepares a record of what came into the estate and what went out. There is no prescribed form. Where the executor has engaged a lawyer, the firm will generally prepare it; where the executor is acting alone, a clear summary in spreadsheet form is normally sufficient. The report goes to each beneficiary at the point of distribution, and beneficiaries are typically asked to sign a release confirming receipt of their share. A signed release is not absolute protection (a beneficiary who has been misled can sometimes have a release set aside), but it is standard practice and remains worthwhile.

The report and the underlying records should be retained for at least seven years.

What if two co-executors disagree?

Co-executors are usually required to act jointly, so a deadlock on a material decision can prevent progress. The first step is a structured discussion, sometimes with a mediator or a wills and estates lawyer involved. Where the disagreement cannot be resolved that way, either executor can apply to the Supreme Court of NSW for directions, although the application is slow and the costs are paid from the estate.

For executors being appointed alongside another person, it is worth agreeing on an approach to decision-making before the role begins, and certainly before any disagreement has arisen.

Does the executor have to keep beneficiaries informed?

The executor owes a duty to the beneficiaries to keep them reasonably informed about the administration. That does not mean weekly updates. It does mean that going silent for several months is the most common cause of beneficiary complaints, and that a short progress note every couple of months addresses most of the friction we see.