Executor Duties & Probate in NSW

Being appointed as an executor carries legal and practical responsibilities. An executor may need to identify and protect estate assets, obtain Probate, pay liabilities, keep records and distribute the estate in accordance with the Will and the law.

What Does an Executor Do?

An executor is the person appointed by a Will to administer the deceased person’s estate. The role can include locating the original Will, confirming the estate assets and liabilities, arranging appropriate protection for property, dealing with institutions and communicating with beneficiaries.

The Supreme Court of NSW describes an executor’s responsibilities as collecting assets, paying debts and distributing the remaining assets to beneficiaries in accordance with the Will.

Initial Steps After a Death

Early tasks may include obtaining the death certificate, locating the original Will and any codicils, notifying relevant organisations, securing property, redirecting correspondence and identifying immediate expenses or risks.

The executor should avoid distributing or disposing of assets prematurely. Estate property must be preserved and dealt with for proper estate purposes.

Is Probate Required?

A Grant of Probate confirms the validity of the Will and the executor’s authority to administer the estate. Probate is commonly required where significant assets are held solely in the deceased’s name or an institution requires a grant before releasing or transferring an asset.

Not every estate requires Probate. The requirements can depend on the nature, ownership and value of the assets and the policies of the organisations holding them.

Applying for Probate in NSW

The application process includes identifying the estate assets, publishing the required online notice, waiting the prescribed period and filing the application and supporting documents with the Supreme Court of NSW. For a focused overview of timing, fees and common delays, see our Probate Timing & Costs NSW guide.

If the Court requires clarification or further material, it may issue a requisition that must be answered before the application can proceed.

Identify Assets and Liabilities

The executor should establish the estate’s financial position. Assets can include real property, bank accounts, shares, personal property, business interests and amounts owing to the deceased. Liabilities can include loans, tax, household accounts, funeral expenses and other debts.

How an asset is owned matters. Jointly owned assets may pass outside the estate by survivorship, while an interest held as tenant in common generally forms part of the estate.

Keep Records and Estate Accounts

Executors should keep clear records of money received, expenses paid, decisions made and distributions completed. Beneficiaries may be entitled to information about the administration, and proper accounts help demonstrate that the executor has fulfilled the role appropriately.

Pay Debts and Deal With Tax

Estate liabilities and administration expenses should be identified and paid before the balance is distributed. Tax returns, capital gains, property sales and other taxation issues may require advice from an accountant or taxation adviser.

Distributing the Estate

Distribution should occur only after the executor has established the estate’s assets and liabilities, completed the necessary administration and considered any relevant claim or dispute risk. Premature distribution can expose an executor to personal difficulty if further liabilities or claims emerge.

Disputes, Claims and Conflicts

Questions may arise about the validity or interpretation of a Will, a Family Provision claim, the ownership of an asset or the executor’s administration. Executors should obtain advice promptly if a dispute is threatened or if their personal interests may conflict with their duties.

How Russell Kelly & Associates Can Assist

We can advise executors and administrators, prepare Probate or Letters of Administration applications, assist with estate administration and advise concerning contested estate matters.

Read more about our Probate and Deceased Estates services, Intestacy in NSW, Contesting a Will and Family Provision claims, and the Supreme Court of NSW Probate guidance.

This information is general in nature and does not constitute legal or taxation advice. Executor obligations and the steps required depend on the Will, estate assets and particular circumstances.