Information for Executors

If you are named as an Executor you should seek prompt legal advice about administering the Estate.  You can choose any solicitor you wish and are not limited to engaging the lawyer who drafted the Will.

If you decide to arrange for a solicitor to administer the Estate on your behalf, the costs (provided they are reasonable) will be met from the proceeds of the Estate. You may also need to get professional advice from an accountant, especially if you have any problems with the Australian Taxation Office or need advice about accessing funds.

The following information is intended as general information for Executors and should not be relied upon as formal legal advice.

An Executor is responsible for:

  • obtaining the original Will
  • arranging for disposal of the body
  • getting the death certificate from the Registry of Births, Deaths and Marriages
  • ascertaining the deceased’s assets and liabilities
  • assessing the value of the deceased’s assets
  • obtaining probate if required
  • paying the deceased’s debts, income tax, duties and funeral expenses
  • distributing the assets according to the terms of the Will.

A Grant of Probate can only be made if there is a Will. However, often the family does not know whether the deceased left a Will or where it can be found. If you cannot find a Will in the deceased’s personal papers, check with their bank or solicitor, or NSW Trustee.

Acting as an Executor is a formal and important duty to the deceased and the beneficiaries of their Will.

If you are not the next of Kin of the deceased person, you will need to work closely with their spouse or close family members to effectively carry out your duties – however the ultimate decision in matters concerning the deceased Estate (subject to the Court) is yours and you will be called upon to sign documents and otherwise arrange the deceased’s affairs.

This is important in respect of things like funeral arrangements, payment of debts as they fall due (like a mortgage) and operation/access of the deceased accounts by way of example.

Under section 92A of the Probate & Administration Act 1898, the Executor or administrator can make urgent payments from the deceased person’s estate for the maintenance and support of any person who was substantially dependent on the deceased person at the time of his or her death.

As Executor you will need to produce the death certificate for various purposes, including claiming insurance, claiming superannuation, drawing on the deceased’s bank account or claiming for funeral benefits.

The funeral director often arranges registration of the death.  You need to complete a death certificate application form, identifying yourself and your reason for wanting the certificate. Forms are available from the Registry of Births, Deaths and Marriages.

The original death certificate is required for making an application for probate or for Letters of Administration.

You will need to promptly investigate the deceased’s finances, their assets and liabilities, attend to assessing the value of those assets and finding out what asset-holding institutions (like insurance companies) require before they will release funds.

Generally, when an Estate is very small (less than $15,000) and uncomplicated, or when all assets are held as joint tenancies, there is no need to obtain Probate or Letters of Administration.

Probate is an order from the Supreme Court stating that the Will has been proved to be the last valid Will of the deceased and allowing an Executor to collect and distribute the Estate in accordance with the terms of the Will.

The need for a Grant of Probate also depends on the form in which the assets are held. Some asset holders (like insurance companies or banks) will require you to produce a Grant of Probate before they will release assets above a certain value.

Probate will always be necessary if the deceased died owning real estate except if it is owned as joint tenants.

If you do not wish to act as an Executor you do not have to accept that responsibility. You can give up their right to obtain probate by filing a renunciation. You can appoint the NSW Trustee or a private trustee company in your place. Alternatively, one of the beneficiaries can apply to the Court to become the Administrator of the Estate (Probate & Administration Act 1898, section 74).

Can you be paid to Act as an Executor? Yes- unless the Will specifically prohibits it. The will-maker may specifically state that the executor should be paid for their work in the Estate, and how much. Even if this is not done, the Executor may apply to the Supreme Court for a commission for the work that they have performed (Probate & Administration Act 1898, section 86). Solicitors who act as an Executor may also apply for this commission. Being an Executor can involve a lot of time and effort. Any payment received will generally be modest and proportionate with the Estate.

An Executor’s role ends once they have collected the assets of the Estate, paid the debts and distributed the balance to the beneficiaries.

For more information please contact us.