An executor of a will in New South Wales holds a position of legal authority and serious responsibility. This person is tasked with administering the estate of someone who has passed away — which includes obtaining probate, protecting estate assets, paying debts and taxes, and distributing inheritances as outlined in the will.
In NSW, the duties of an executor are governed by state legislation and must be carried out with diligence, honesty, and in the best interests of all beneficiaries. Mismanagement can lead to legal consequences, delays, or disputes.
This article outlines the six key responsibilities of an executor in NSW and answers commonly asked questions about rights, obligations, time limits, and more — giving you a clear understanding of the role and its legal expectations.
What Is the Legal Role of an Executor in NSW?
The executor of a will is the person responsible for ensuring that the final wishes of the deceased are properly carried out — a central figure in the broader process involving wills and executors. In New South Wales, this is a formal legal role governed by the Succession Act 2006 (NSW).
When Does the Executor’s Role Begin?
An executor’s responsibilities commence upon the death of the individual; however, full legal authority is generally conferred once probate is granted by the Supreme Court of NSW. The executor is tasked with administering the estate in accordance with the will and relevant laws.
This involves obtaining probate, protecting and managing assets, settling any debts and taxes, and distributing the estate to beneficiaries. Each of these responsibilities is outlined in detail in the sections below.
Key Legal Duties:
- Act in good faith and with due diligence
- Avoid conflicts of interest
- Act in the best interests of beneficiaries at all times
The executorship meaning extends beyond basic administration. It includes a fiduciary obligation to manage the estate lawfully and ethically. Failing to meet these duties could result in personal liability or disputes among beneficiaries.
What Does an Executor of a Will Do in NSW?
Executing a will in New South Wales involves a range of legal and administrative steps that must be followed precisely to avoid complications.
Here’s a breakdown of what’s typically required in New South Wales:
1. Apply for Probate
In most cases, the executor must apply for probate — a legal document issued by the Supreme Court of NSW confirming the will is valid and the executor is authorised to act.
This involves:
- Locating the original will
- Completing a probate application
- Publishing a notice of intended application on the NSW Online Registry
- Submitting required documents to the Court
What happens if there is no executor named in the will?
If no executor is named or willing to act, the Court may appoint an administrator instead. This can delay estate administration, so it’s vital to name a suitable executor when preparing a will.
2. Preserve and Manage the Estate’s Assets
Once probate has been granted, the executor must take immediate steps to secure and manage the estate’s assets. This includes protecting any property, vehicles, valuables, and financial accounts from loss, damage, or misuse.
Key actions may involve:
- Changing locks or securing real estate
- Redirecting mail and notifying banks or financial institutions
- Arranging insurance coverage for high-value items
- Safely storing personal belongings and legal documents
The executor is legally required to act in the best interests of the estate and its beneficiaries, maintaining all assets until they can be formally distributed. Mismanagement at this stage may expose the executor to claims of negligence or breach of duty.
It’s also the executor’s role to obtain valuations for significant assets such as:
- Real property
- Superannuation and investment accounts
- Collectibles or business interests
These valuations are essential for both estate distribution and tax purposes, especially when calculating capital gains or determining the value of entitlements.
3. Collect Estate Assets and Pay Liabilities
An essential duty of the executor of estate is to collect all assets belonging to the estate and ensure that any outstanding debts are paid. This stage is critical, as beneficiaries cannot receive their entitlements until all financial obligations have been settled.
The executor must:
- Close the deceased’s bank accounts and transfer balances into the estate
- Claim any superannuation death benefits or insurance payouts
- Take possession of shares, investment portfolios, and business assets
- Finalise ownership transfers of vehicles and real property
This step often requires providing certified copies of the probate and identification to banks, super funds, and other institutions.
Paying Debts and Expenses
Before any distribution can occur, the executor must pay:
- Funeral expenses
- Outstanding loans, credit cards, or mortgages
- Council rates and utility bills
- Income tax or capital gains tax owed by the estate
This is where the executor’s fiduciary duty is particularly important — they must ensure debts are paid in order of legal priority to avoid disputes or personal liability.
4. Manage Legal Disputes and Claims
An executor of a will must be prepared to handle any legal disputes or claims made against the estate. In New South Wales, it’s not uncommon for wills to be contested — especially if a beneficiary believes they’ve been unfairly treated or left out altogether.
Common Types of Claims
- Family provision claims from eligible persons (e.g. spouses, children, dependants) who were not adequately provided for in the will
- Challenges to the validity of the will based on allegations of undue influence or lack of capacity
- Creditor claims seeking repayment for debts owed by the deceased
Executor’s Role in Legal Disputes
If a dispute arises, the executor is responsible for:
- Defending the estate in court proceedings
- Acting impartially and not favouring one beneficiary over another
- Seeking legal advice to protect the estate’s interests
- Delaying distribution until claims are resolved
Can an executor be a beneficiary in Australia?
Yes — under NSW law, an executor can also be a beneficiary, provided they act fairly and avoid any conflict of interest. This is common in family estates where a trusted relative is appointed to both manage and receive part of the estate.
Handling legal matters with care is vital to maintaining the integrity of the estate and protecting the executor from personal liability.
5. Manage the Estate’s Tax Obligations
The executor of a will is responsible for ensuring all tax affairs of the deceased are finalised before the estate is distributed. This includes identifying outstanding obligations and working with the Australian Taxation Office (ATO) to meet all requirements.
What Taxes Must Be Lodged?
- Final individual tax return for the deceased, covering income earned up to the date of death
- Estate tax returns, if the estate generates income during administration (e.g. rent, dividends)
- Capital gains tax (CGT) on the sale or transfer of certain assets, such as real estate or shares
The executor must also apply for a Tax File Number (TFN) for the estate if it continues to earn income before final distribution.
6. Distribute the Estate to Beneficiaries
Once all debts, taxes, and legal matters have been finalised, the executor of a will must distribute the remaining assets according to the terms outlined in the will. This is the final — and often most anticipated — step in the estate administration process.
Steps in the Distribution Process:
- Prepare a statement of distribution outlining how assets are to be divided
- Transfer ownership of real property, vehicles, shares, and other assets to the named beneficiaries
- Distribute specific gifts, personal belongings, or legacies as instructed in the will
- Keep a record of receipts signed by beneficiaries confirming they have received their entitlement
Executors should not begin distribution until they are confident that:
- All debts and taxes have been paid
- No legal challenges or disputes remain unresolved
- The required waiting period has passed
What Rights Does an Executor of a Will Have in NSW?
While the executor of a will carries significant legal responsibilities, they are also entitled to a number of rights under New South Wales law. These rights ensure that executors can perform their duties efficiently, seek support when needed, and receive fair recognition for their time and effort.
- Right to access and manage estate information
Executors can request records from banks, insurers, super funds, and government agencies to carry out their role effectively.
- Right to seek professional advice
Executors are entitled to engage solicitors, accountants, or financial advisors to help manage legal, tax, or administrative matters — and have those reasonable costs paid from the estate.
- Right to reimbursement
Executors can be reimbursed for out-of-pocket expenses incurred while administering the estate (e.g. court fees, travel costs, postage).
- Right to executor’s commission
In some cases, particularly with complex or time-consuming estates, an executor may apply to the Supreme Court for a commission. The amount granted depends on the size of the estate and the complexity of the administration.
Can an Executor Refuse the Role in NSW?
Yes. An appointed executor is not legally obliged to accept the position. If unwilling or unable to act, they can renounce probate before taking any action on the estate. Once they begin administering the estate, they may need court approval to step down.
Understanding these rights helps balance the weight of the role and ensures executors know where they stand legally and financially.
How Long Does an Executor Have to Finalise an Estate in NSW?
One of the most frequent concerns among beneficiaries is how long it takes for an executor of a will to complete the estate administration. In New South Wales, there is no fixed statutory deadline, but the law provides general expectations that guide the process.
The Executor’s Year
It is widely accepted in NSW that an executor has 12 months from the date of death to finalise the estate. This period — known as the executor’s year — allows reasonable time to:
- Obtain probate
- Identify and value estate assets
- Pay debts and taxes
- Resolve any legal disputes
- Prepare for final distribution
Delays beyond this timeframe are not illegal but may prompt scrutiny from beneficiaries or the court, particularly if there is no valid reason. Executors are expected to act with due diligence and avoid unnecessary delays.
Common Causes of Delay
- Difficulty locating or valuing assets
- Ongoing legal proceedings or contested wills
- Complex tax or financial issues
- Waiting periods required before distribution (e.g. for legal challenges to be lodged)
Managing Expectations
Executors should maintain clear communication with beneficiaries throughout the process to manage expectations and reduce the risk of conflict. Transparency, accurate record-keeping, and timely action all contribute to fulfilling the role effectively.
Why Choosing the Right Executor of a Will Matters
The role of an executor of a will in New South Wales is more than just a title — it’s a legal responsibility that requires diligence, honesty, and sound judgement. From applying for probate and managing assets, to resolving disputes and distributing the estate, an executor plays a central part in protecting the wishes of the deceased and ensuring beneficiaries receive what they are entitled to.
Understanding the full scope of this role is essential for anyone drafting a will or being named as an executor. Knowing your duties, rights, and legal obligations can help you avoid costly mistakes and reduce the risk of conflict.
If you’re dealing with a dispute over a will or estate — whether you’ve been left out of a will, need to challenge an executor’s conduct, or want to make a family provision claim — we can help. At KPT Legal, we represent clients in contested wills and estate litigation across NSW with clarity, care, and strong legal strategy.
Get in touch with us today to discuss your situation.
