Executor duties: what an executor actually has to do

Being named an executor can feel like an honour and a burden at the same time. Many people accept the role without really knowing what it involves, then find themselves responsible for a deceased estate at a difficult time. This guide sets out, in detail, what an executor actually has to do in NSW.

What an executor is

An executor is the person named in a will to carry out its terms after the will-maker dies. The executor is legally responsible for administering the estate, which means gathering the assets, paying the debts, and distributing what is left to the beneficiaries, all in accordance with the will and the law.

The role is a position of trust and real legal responsibility. An executor is personally accountable for doing the job properly, which is a point that surprises many people when they first take it on. It is not simply a ceremonial title.

The executor's duties, step by step

The work of an executor follows a broad sequence. Every estate is different, but most involve these steps.

1. Locate the will and confirm the appointment. Find the original will, confirm you are the named executor, and read it carefully to understand the gifts and any special provisions.
2. Arrange the funeral. The executor often has responsibility for, or a say in, the funeral and the deceased's wishes about it.
3. Identify and secure the assets. Work out what the deceased owned and owed. Secure property, valuables, and documents, make sure assets are insured, and keep things safe while the estate is administered.
4. Value the estate. Obtain valuations of significant assets so the estate can be properly accounted for.
5. Apply for probate if required. Where probate is needed, prepare and lodge the application in the Supreme Court. There is a separate article in this series on probate.
6. Pay the debts and liabilities. Pay the deceased's debts, final expenses, and any tax owing, from the estate, before distributing to beneficiaries.
7. Publish a notice of intended distribution. Give the required notice and observe the waiting period before distributing, which protects the executor against certain later claims.
8. Distribute the estate. Distribute the assets to the beneficiaries in accordance with the will, and obtain receipts.
9. Keep accounts. Keep clear records of everything received, paid, and distributed, and be ready to account to the beneficiaries.

The risks of the role

The part people least expect is that an executor can be held personally liable for getting it wrong. If an executor distributes the estate too early, pays the wrong people, misses a debt or a tax liability, or fails to act properly, they can be personally responsible for the loss.

The timing of distribution is where we see the most risk. Two timeframes matter. An executor who distributes before the notice period has run, or before a family provision claim period has passed, can be exposed if a claim or a creditor then appears. A family provision claim can generally be made within 12 months of death, which is one reason a careful executor does not rush to distribute. There is a separate article in this series on contesting a will.

This is not a reason to panic, but it is a reason to take the role seriously and to get advice, especially for anything beyond a simple estate.

When there are complications

Some estates are straightforward. Others are not. Complications that call for advice include a will that is unclear or possibly invalid, a blended family or the prospect of a family provision claim, assets in different states or overseas, a business that has to be dealt with, significant debts or possible insolvency of the estate, or disputes between beneficiaries. In these situations the executor's exposure is higher, and good advice is cheap compared with the cost of getting it wrong.

Can an executor be paid, or step down

An executor is generally not entitled to be paid for the time they spend unless the will provides for it or the court allows a commission, though they can be reimbursed for proper expenses. An executor who does not want the role can, in some circumstances, renounce before they start to act, or seek to have someone else appointed. If you have been named and do not want to act, get advice before you do anything that counts as taking up the role.

How we help

We guide executors through the whole process, from locating the will and applying for probate to paying debts, managing the notice and distribution timing, and distributing correctly, so the estate is administered properly and the executor is protected. For a simple estate we keep it efficient. For a complex or contested one, we manage the risk and the disputes. Being an executor is a real responsibility, and you do not have to carry it alone.

Frequently asked questions

What does an executor actually do? They administer the estate, locating the will, securing and valuing assets, applying for probate if needed, paying debts and tax, and distributing to beneficiaries in accordance with the will.

Can an executor be personally liable? Yes. An executor who distributes too early, pays the wrong people, or fails to administer the estate properly can be personally responsible for the loss.

When can an executor distribute the estate? After debts are paid and the proper notice and claim periods have passed. Distributing too early, including within the 12-month family provision period, carries risk.

Do I have to act as executor if I was named? Not necessarily. You may be able to renounce before taking up the role, or have someone else appointed. Get advice before you act.

Keep reading

• Wills and estates
• What is probate and how do you apply in NSW?
• Contesting a will: family provision claims in NSW

This article contains general information only and is not legal advice. For advice about your situation, please contact us. Liability limited by a scheme approved under Professional Standards Legislation.