When a person dies, the executor named in their Will becomes responsible for settling their affairs. Most people accept the role out of trust or loyalty without realising what it involves. But in New South Wales, an executor steps into a position that carries legal obligations, personal accountability and, at times, difficult decisions.
This guide explains what an executor is expected to do under NSW law, how the process usually unfolds, and the practical issues that tend to arise along the way.
The nature of the role
Executors are fiduciaries. That means they must act honestly, preserve estate assets, avoid conflicts of interest and keep proper records. Their duties arise from a mix of common law, the Succession Act 2006 (NSW), the Probate and Administration Act 1898 (NSW) and the Trustee Act 1925 (NSW).
Until the Supreme Court issues the grant, an executor’s authority remains unproven and limited. If the Will is invalid, revoked by a later Will, or if the Court passes over the named executor, anything done before probate can become problematic. For that reason, no substantive administration - collecting funds, selling real estate, transferring assets - should occur until probate is granted.
The early days – practical tasks
The first few weeks are dominated by practical steps rather than legal ones. Executors should:
locate the original Will
confirm the deceased’s funeral wishes (if any)
arrange the funeral and pay for it from estate funds
secure the deceased’s home and valuables
check insurance, particularly for vacant property
notify banks, superannuation funds, insurers and other relevant institutions
obtain the death certificate
Where the deceased owned pets, ran a business, or lived alone, more urgent steps may be required. Much of the stress in early administration comes not from legal complexity but from logistics and family expectations.
When probate is required
Probate is the Supreme Court’s confirmation that the Will is valid and that the executor is entitled to act. Executors apply under the Probate and Administration Act 1898 (NSW), filing the original Will, death certificate, an inventory of property and an affidavit addressing any issues such as handwritten amendments or lost pages.
In practice, probate is required in most estates where the deceased owned:
real estate in their sole name
significant bank or investment accounts
shares or managed funds
superannuation that is payable to the estate
Even modest assets can prompt institutions to insist on sighting a grant. Real estate is the clearest indicator — if the deceased owned a house in their sole name, probate is almost always unavoidable.
Collecting and managing estate assets
Once probate is granted, the executor’s authority becomes straightforward to exercise with banks, brokers, and government bodies. The next stage involves:
closing or transferring bank accounts
selling or transferring shares and investments
dealing with superannuation death benefits (which may or may not form part of the estate)
arranging for the sale or transfer of property
preserving or winding up any business interests
Executors have a fiduciary duty to collect and preserve estate assets, keep proper accounts and administer the estate according to the Will and the law. In practice, that means securing assets early, maintaining insurance, keeping clear records, and avoiding premature distributions.
Superannuation is a common point of confusion. Whether it forms part of the estate depends largely on the binding nomination in place. Executors often assume superannuation flows into the estate automatically - it does not.
Debts, tax and other liabilities
Before beneficiaries receive anything, the executor must pay the estate’s debts. These may include:
mortgages or personal loans
credit cards and other liabilities
tax owed by the deceased up to the date of death
tax that arises during the administration period
outstanding bills and expenses
The estate is treated as a trust for tax purposes. Executors must obtain a TFN for the estate, lodge returns, and handle any capital gains tax that arises on the sale of assets. CGT often catches people off guard, particularly with investment properties or transfers that don’t qualify for the main residence exemption.
Executors can, and often should, advertise for creditors. Although not mandatory, it offers protection if later claims emerge.
Distributing the estate
Once liabilities are finalised and the executor has a clear view of the net estate, they can prepare for distribution. Timing matters. Eligible persons have 12 months from the date of death to commence a family provision claim under the Succession Act 2006 (NSW).
Executors who distribute too early may be personally liable if a claim later arises and the estate no longer holds sufficient funds. This risk is real — it is one of the most common pitfalls for inexperienced executors.
Distributions may involve transferring real property, dividing cash, or establishing ongoing trusts for children or vulnerable beneficiaries. Providing beneficiaries with a summary of receipts and payments is considered good practice and promotes transparency.
Disputes and claims
Executors often find themselves managing family tensions. Disputes typically fall into one of three categories:
challenges to the validity of the Will (capacity, undue influence, execution issues)
family provision claims by eligible persons
complaints about delay, communication or perceived unfairness
The executor’s position is a neutral one. They are not a referee, nor are they there to champion one beneficiary over another. Their task is to administer the estate according to the law and the Will. If a claim is brought, the executor may need advice on whether to defend it, remain neutral, or settle.
Costs reasonably incurred in administering or defending the estate are ordinarily paid from the estate, provided the executor acts prudently.
Liability and executor’s commission
Executors can be personally liable if they breach their duties. Common examples include:
distributing the estate before the 12-month limitation period expires, in circumstances where someone brings a successful claim
failing to insure or protect assets
mingling estate funds with personal accounts
overlooking tax liabilities or debts
In appropriate cases, executors may seek commission for their work. Under s 86 of the Probate and Administration Act, the Supreme Court may award commission for “pains and trouble”. Some estates resolve this by agreement with beneficiaries. Commission is never automatic and must be justified.
When the role ends
Once all assets are collected, liabilities discharged and distributions completed, the executor’s responsibilities come to an end. Preparing a short final account for beneficiaries is a helpful way to bring the process to a close.
Most straightforward estates in NSW can be finalised within 12 months. More complex estates such as those involving disputes, trusts or business interests can take longer.
Getting help as an executor
Executors are entitled to seek professional help. They don’t need to navigate the probate process, tax issues, property transfers or disputes alone. Solicitors, accountants, financial institutions and agents can all assist, with reasonable costs paid from the estate.
Specialist advice is particularly valuable where:
the estate includes real property or business interests
superannuation is involved
the Will is unclear or contains errors
there are competing beneficiaries
a family provision claim is anticipated
Getting advice early typically prevents complications later and protects the executor from unnecessary risk.
Key point
Being an executor is an important responsibility. With a clear understanding of the process, and with professional support and guidance where required, the role can be managed confidently and without undue stress.
We can help you navigate your executor duties
At Thornton + King we have a team of wills and estate specialist lawyers who can guide you through your executor duties. With a history that dates back to 1924, there isn’t much that we haven’t seen or done before. To speak to an expert estate lawyer, give us a call or submit an enquiry now.
