Acting as an executor

This guide is for people in NSW who have been made an executor in a will. It covers finding the will, finding assets, probate, working with beneficiaries, tax and distributing assets.

1

First steps

If you are appointed as an executor, you are responsible for many different tasks in dealing with the assets, accounts, and debts of someone that has died.

As an executor, some of the first things you might do include:

  • finding out what's involved with being an executor 
  • finding the will
  • deciding whether to accept the role
  • finding the contact details of beneficiaries 
1

What an executor does

The executor of a will carries out the wishes of someone that has died. The role of the executor is to manage the estate within the terms of the will and to protect the assets of the estate. 

Executors are named in the will, and their responsibilities include:

  • finding the will
  • making funeral arrangements
  • arranging burial or cremation
  • getting the death certificate 
  • listing assets and liabilities
  • protecting assets, business interests, and property 
  • assessing the value of the deceased's assets
  • obtaining probate (if required)
  • paying the person’s debts, income tax, duties and funeral costs
  • distributing the assets according to the terms of the will
2

Finding the will

If the person has a will, you may be able to find it:

If you don’t know the name of their solicitor, try calling ones in their area. When you are asking, provide them with the following details:

  • their full name
  • their address
  • date of death
  • information about your relationship to them (eg. that you are their spouse)
3

If there isn’t a will

If there isn’t a will, you cannot be appointed an executor, and you can’t apply for a grant of probate. 

There’s a different process for people who have died without a will and who have assets in NSW. This process involves the next of kin applying to the NSW Supreme Court for a grant called called Letters of Administration.

Letters of Administration allows an administrator (who is usually the next of kin) to distribute the assets of the person that has died. 

If the person died without owning property, or they only had small amounts of money, you might not need to be apply for Letters of Administration. Check with the person’s bank to find out what’s needed to close their account.

Although an application for Letters of Administration is usually made by the person’s next-of-kin (their closest relative), there is an option for the NSW Trustee & Guardian is appointed as administrator.

4

Dealing with pets

If the person that has died owned a pet, they might have included information in their will about who will take care of it. 

If they did not include information in their will, you should consider getting legal advice. 

5

Choosing not to be the executor

If you want to renounce the role of executor, it is better to do this as early as possible, and before you apply for a grant of probate or start collecting assets.

In some situations, an executor is not able to act. For complete information what happens when an executor is not able to act, see LawAccess NSW.

6

Financial assistance (commission)

An executor can apply to the NSW Supreme Court for compensation for the time and effort involved with administering an estate. This kind of payment is called "commission", and is paid from the estate.  

Generally, if there is more than one executor or administrator, they will make a joint applications for commission.

2

Get help or support

When you are acting as executor, there are different types of support to help you with administration, costs, and understanding what to do. 

1

Getting legal help

Solicitors can help with many of the legal processes that are involved in executing a will. These include:

  • assessing the will
  • preparing a grant of probate
  • contacting organisations 
  • contacting beneficiaries 
  • explaining how legal processes work
  • contests to the will or the estate

How much lawyers charge

In NSW, the amount a lawyer can charge for work they do up to obtaining the grant of probate or letters of administration is set by law. The set fees are based on the value of the estate.

However, the fees that are set by law don't include: 

  • goods and services tax (GST) 
  • disbursements (expenses) paid to third parties such as court filing fees and online registry notice fees 
  • work carried out by the lawyer to administer the estate after the grant of probate or letters of administration. For example, transferring property to the beneficiaries.

A lawyer must provide you with a costs agreement and disclosure in writing

Help from NSW Trustee & Guardian

NSW Trustee & Guardian are a government agency that specialise in wills and estates. 

If you don't want to accept the role of executor, you can appoint NSW Trustee & Guardian to act as the executor for you. 

Trustee and Guardian charge for their services. The amount they charge depends on how complex the estate is and what services you are asking for.

2

Help from family and friends

While some tasks are the responsibility of the executor, some can be shared amongst family and friends. These include:

  • finding organisations
  • organising the funeral
  • contacting people about the death
3

Grief support

Grief support services can help people to understand and process the death of someone close to them. 

Getting grief support can involve talking to a: 

  • psychologist
  • grief counsellor 
  • psychiatrist 
  • support group with someone who has had a similar experience 

You can access these services in different ways, including through:

  • one-on-one counselling
  • support groups
  • online or telephone support

Your GP (General Practitioner) can give you care and advice about grief support. They can also refer you to specialist services if you need them.

For an overview of these services, see the Centre for Grief and Bereavement.

4

Financial payment (commission)

An executor can apply to the NSW Supreme Court for compensation for the time and effort involved with administering an estate. This kind of payment is called "commission", and is paid from the estate.  

Generally, if there is more than one executor or administrator, they will make a joint applications for commission.

3

Find and notify beneficiaries

Beneficiaries are people who are entitled to get money or property from the estate of someone who has died.

Beneficiaries can include:

  • people named in the will
  • people who are close to the person that has died

As an executor, part of your role is finding and contacting beneficiaries. This can be difficult if there are lots of people named in the will, or there are no recent contact details for them. 

1

Finding beneficiaries

As an executor, part of your role is finding and contacting beneficiaries. This includes beneficiaries that have been directly named in the will, and immediate family members.

If there are many people named in the will, or there are no recent contact details, or if beneficiaries live in other cities, this can be difficult. 

Some places you might find contact details:

  • in personal documents of the person who died (home office, address book) 
  • phone book look up
  • social media or email

 

2

What to provide to beneficiaries

When you are contacting beneficiaries, provide them with information about what has been left to them in the will.

The executor will need to provide financial information at different points throughout administering the estate, particularly if selling assets or distributing property.

4

Find and protect assets

Executors are required to find and protect all assets that were owned by the person who has died. 

If you are applying for a grant of probate, you will need to have a list of these assets before you submit your application.

1

Finding assets and debts

As an executor, you will need to find all assets and debts that belong to the person that has died.

Assets can mean:

  • real estate property
  • money, shares, bank accounts
  • other property such as car, clothing, household furniture and pets.

Debts are what a person owes, such as:

  • loans (home, personal, credit cards)
  • wages and other business debts

Once you have gathered all the information, you will need to work out the value of the assets owned by the deceased.

2

Protecting assets

Executors are responsible for protecting the assets of the estate.

This may involve:

  • storing valuables
  • investing surplus funds 
  • getting insurance for property 
  • protecting business interests

As an executor you can be held personally liable for any damage to property which has not been secured or insured.

3

Listing assets for a grant of probate

When you apply for a grant of probate, you need to provide a complete list of assets and liabilities for the person at the date of their death. This only includes assets and liabilities that are solely owned by the person that has died. 

It does not include:

  • assets that are jointly held with another person (which pass to the surviving joint owner) and
  • assets that are held in trusts, such as a family trust (which continue on after death).
  • superannuation death benefits  (unless they were left to the estate, executor, or administrator)
  • life insurance death benefits (unless they were left to the estate, executor, or administrator)
5

Get a grant of probate or letters of administration

Probate is a court order made by the Supreme Court of NSW which:

  • confirms that the will is valid 
  • permits the executor to distribute the estate as described in the will.

Property can't be distributed until you are granted probate.

1

When you need a grant of probate

Some estates don't need to go through the probate process.

Generally you'll need to apply for a grant of probate if:

  • the assets are owned solely by the person that has died
  • assets are over a certain amount.

You won't need to apply for a grant of probate if:

  • all assets are shared with a single person
  • the total amount of assets doesn't exceed a certain amount.

Shared assets means that the asset (eg. house, bank accounts, or shares) are jointly owned. This is often the case for people who have been married. 

2

Applying for a grant of probate

To submit an application for a grant of probate, you will need to follow a process that includes: 

  • gathering supporting documents
  • publishing a probate notice
  • waiting 14 days 
  • submitting a probate application 
  • responding to Requisitions from the court 

All of these things will need to be done with the NSW Supreme Court.

3

If there isn't a will (letters of administration)

You will need to apply for letters of administration if:

  • there is no will
  • the will is not valid
  • there are no executors named in the will
  • the executor doesn’t want to, or is unable to, act
6

Collect assets and pay debts

Once you have been granted probate, you will be able to collect assets and pay off debts.

This might involve:

  • setting up a bank account
  • selling property or shares
  • collecting interest 

To make recording this easier, you can set up a single bank account in the name of the estate to deposit any money from sales or interest. 

1

Collecting assets

Different organisations have different processes for releasing assets to an executor.

Often you will need to provide:

  • a certified copy of the grant of probate
  • personal identification 
2

Selling assets

Sometimes the will might leave money to beneficiaries, rather than property. 

In some cases, you will need to sell property or shares to make this possible.

To make sure you are getting a fair price for any property you sell, it might be useful to talk to an independent valuator before the sale.

3

Paying debts

Before anything from the estate can be distributed to the beneficiaries, any existing debts need to be paid from the estate.

This is the case whether or not probate or administration was needed.

Debts might include:

  • loans (credit cards, mortgages)
  • funeral expenses
7

Distribute assets to beneficiaries

Once all assets have been collected and all debts have been paid, the executor can distribute the estate.

Distributing the estate involves officially signing over all assets to beneficiaries. 

The process of signing over assets is different for real estate and personal property.

1

Transferring personal property and money

Personal property might include:

  • clothing and jewellery 
  • furniture
  • animals
  • bank accounts 
  • shares
  • cars and other vehicles. 

These may be dealt with in the will as:

  • part of the whole estate,
  • as specific gifts to named beneficiaries 
  • what is left after all other things in the will are dealt with. 

If there is no will, the personal property is dealt with according to the rules of intestacy.

2

Transferring real estate

Real property includes land, houses, units, commercial and industrial property.

The process will be different depending on whether the property is owned:

  • solely by the person who died 
  • by multiple people
8

Sort out taxes

Executors will often need to submit tax returns on behalf of the person that has died.

Depending on how long it takes to collect and distribute assets, you might need to submit tax returns on behalf of the estate. 

If you are both an executor and a beneficiary, you might need to declare the assets you receive as part of your tax return.

1

Submitting a tax return for someone that has died

Executors are responsible for submitting the final tax return for someone that has died.

Before you lodge a tax return for someone that has died, you will need to notify the ATO of their death. 

You may need to lodge:

  • a 'date of death tax return' on behalf of the person that has died (or tell the ATO that a tax return is not necessary)
  • tax returns for previous years

You can only lodge tax returns for a deceased person using a paper tax return.

2

If you are a beneficiary

If you are a beneficiary of the estate, you might have some tax obligations. The Australian Tax Office (ATO) provides advice for beneficiaries on: 

  • Receiving super benefits
  • Receiving assets
  • Earning income
  • Beneficiaries presently entitled but under a legal disability
  • Non-resident beneficiaries
3

When there is a trust

A testamentary trust is a trust established under a valid will, but it's not the same trust as the deceased estate.

Depending on who is appointed as the trustee and appointor of the testamentary trust, there may need to be a high level of co-operation between family members to ensure that necessary tax, financial and other information is shared for the trust to operate effectively.

9

Dealing with contests or disputes

Some of the reasons that someone might contest a will include:

  • they are a family member and don't believe they've been fairly considered as part of the will 
  • the will is not valid 

If someone makes a formal contest to the will or makes a claim to the estate, you must wait until this is resolved by the court before distributing any assets. 

Top of page