The role of the executor
The role of the executor is to administer the estate (things owned and owed by the deceased) and to carry out the instructions in the Will, after someone has passed away. If you’re an executor of a Will you may also be appointed to take on the role of trustee. Trusts may be set up to provide ongoing support for children or grandchildren beneficiaries under a Will.
It is important that the executor understands the legal, financial and taxation responsibilities and can stay neutral if there are any disputes. The role can be emotionally challenging and time consuming.
The difference between an executor and administrator
Depending on whether there is a valid Will or not will determine the role:
- if there is a Will, the executor is named in the Will
- the executor is formally appointed to the role by applying to the Supreme Court of NSW and being granted probate of the Will after the death
- if there isn't a Will, the court will appoint an administrator for the estate
- if there is a Will but the executor has passed away or can't take on the role, the court will appoint an administrator.
How to get started
As the executor, the responsibilities can be wide and varied. This guide will help you with the steps and tasks involved in performing your role.
Finding the Will and what to do if there is no Will
Learn more about where to find the Will of someone who has died, and what to do if someone has died without a Will.
If there isn't a Will, you cannot be appointed an executor, and you cannot apply for a grant of probate(when the Supreme Court recognises that a Will is legally valid and there is permission to administer the estate)
Planning a funeral and arranging burial or cremation
As executor, you're responsible for arranging the funeral and making payments. This can be planned together with the person's family.
There are several factors to consider when planning a funeral or memorial, which may impact cost and timing.
Learn more about planning a funeral.
Getting the death certificate
A death certificate is the official record of a death. It can be used as proof of death and proof of relationship to the person who has died.
Learn more about why you need one and how to apply for a death certificate.
Find and notify beneficiaries
Part of your role as executor is to find and contact beneficiaries of a Will. 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 the estate administration, particularly if selling assets or distributing property.
Find out more about who is a beneficiary.
Finding, protecting and listing assets and debts
The role of the executor is to find, protect and prepare a list of assets for the estate, this involves:
- contacting financial institutions, service providers, government departments, searching records (especially land and property information) and any other relevant companies
- storing valuables such as jewellery, ornaments and paintings
- investing excess funds after debts are paid and arranging any insurance. You can be legally responsible for any damage to property which hasn't been secured or insured
- preparing a list of household and personal goods, cash, business interests, real estate and securities. It doesn't include:
- assets that are jointly held with another person (which generally pass to the surviving joint owner)
- assets that are held in trusts, such as a family trust (which continue on after death)
- superannuation death benefits (unless they are paid to the estate)
- life insurance death benefits (unless they were left to the estate, executor, or administrator).
Let organisations know that someone has died
You will need to notify banks, financial institutions and government agencies of the person’s death. This will make sure that debts don't continue and that income such as pensions are stopped.
The Australian Death Notification Service (ADNS) can help you contact multiple organisations using a single online notification.
Apply for a grant of probate or letters of administration
Within 6 months of the death, you will usually need to apply for either a grant of probate or letters of administration, depending on the Will.
This will involve preparing all the documents needed to apply to the Supreme Court for a grant of probate or letters of administration.
Find out more about:
Collect assets and pay debts
You can start collecting an estate's assets and paying the debts once probate or letters of administration is granted. You will need to make sure all debts and expenses have been accounted for, paying legacies, transferring specific gifts, establishing any ongoing trusts and transferring or paying any remaining assets to the remaining beneficiaries.
If you need to sell assets before you distribute the estate, you will need to make sure that you get a fair market price. Beneficiaries could sue you to recover the amount owing to them.
The estate can be distributed to the beneficiaries of the estate after all debts have been paid.
Distribute assets to beneficiaries
Under NSW law, we recommend that an executor shouldn't distribute an estate any earlier than 6 months after the date of death, (and 30 days after a ‘Notice of Intention to Distribute’ is published).
The executor or administrator can distribute the identified assets to the beneficiaries:
- after a grant of probate or letters or administration is made
- not less than 30 days after the Notice of Intended Distribution has been published
- all the debts have been paid.
It can take 9-12 months to finalise an estate and possibly longer if there are legal proceedings relating to the estate.
The process of transferring assets to beneficiaries is different for real estate and personal property.
Transferring personal property
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 gifts in the estate.
If there is no Will, the personal property will be dealt with as part of the whole estate.
You can find more information about how to transfer personal property to beneficiaries at Law Access NSW.
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.
Learn more about how to transfer real estate property at LawAccess NSW
You must be careful when deciding who is entitled to receive money or assets under the terms of the Will. You could be legally responsible for misunderstanding the Will or not correctly identifying all the beneficiaries.
Sort out taxes
There are tax responsibilities when acting as an executor of an estate:
- you may need to submit tax returns on behalf of the estate
- if you are both an executor and a beneficiary, you may need to declare the assets you receive as part of your own tax return
- you may need to co-operate with various groups including family members if a testamentary trust is established under a valid Will
- a testamentary trust is a trust set-up under a valid Will
- provide an accounting report of all administration activities to the beneficiaries
- if beneficiaries are not satisfied they may approach the court to have you removed.
If you have distributed all the assets of the estate to the beneficiaries and the estate still owes money to the tax office, you may be personally responsible to make the payment.
If there is a Will dispute
A Will might be contested for several reasons, including:
- a family member does not believe they've been fairly considered as part of the Will
- the Will is not valid.
To contest a Will, a family provision claim must be filed with the court within 12 months of the date of death.
Only an eligible person can make a family provision claim, including:
- immediate family member
- former husband or wife
- de facto partner.
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.
Learn more about family provision claims at LawAccess NSW.
Support services for executors
There are different types of support to help you with administration, costs, understanding what to do and coping emotionally.
Find out more about:
- professional legal help with the legal processes involved in executing a Will
- NSW Trustee and Guardian
- grief support to help you process and come to terms with the death
- financial support for the time and effort required in executing a Will.
If you choose not to be the executor
Just because you have been chosen as the executor doesn't mean you must accept – and you are under no legal obligation to act.
There are many reasons why you may not be able to or don't want to accept the role, including:
- living interstate or overseas
- not having time for the many demands
- concerns about having to manage family issues
- not wanting to be in a stressful court action if the estate is sued
- concerns about taking on the possible legal risks.
If you decide to turn down the role of executor, you should do this as soon as possible and before you start the estate administration process.
You can give up and transfer the role to an independent professional executor such as NSW Trustee and Guardian.
If you are a beneficiary under a Will, next of kin or relative of the person who died, and the executor is not able to or not wanting to apply for probate, you should get legal advice.
Learn more about what happens if an executor is unwilling or unable to act.
NSW Trustee and Guardian is the executor
NSW Trustee and Guardian can act as your executor and administer the deceased estate for you.
We have over 100 years of experience acting as executor and administrator. We provide a personal, professional and impartial service to legally administer the estate and carry out the decisions made in the Will. You can find out more about our fees.
The estate will be looked after by our team of experts, including:
- solicitors
- estate managers
- trust managers
- accountants
- financial planners
- tax specialists
- genealogists (experts to locate any beneficiaries).
Our complete service provides peace of mind that we can manage everything needed to make sure the assets are distributed according to the wishes in the Will.
We will remove you from the complex and stressful responsibilities, including:
- confirm the Will is valid
- arrange the burial or cremation (including payment)
- confirm and contact the beneficiaries
- provide a Deceased Estate Information form and checklist
- obtain a grant from the Court to permit the estate administration
- confirm assets
- protect the assets
- paying taxes and debt liabilities
- sell and distribute assets
- finalise the estate including taxes.
We will need certain information and documents to start the deceased estate administration process.
- complete the Deceased Estate Information form, this gives us an overview of the most current asset and debt details that you’re aware of
- review the Deceased estate document checklist.
There are several ways we will find out about a person's death.
We search for published death notices
We search published death notices and cross check whether we have a match (or possible match) for the latest Will.
If we establish that you are a customer, we contact the publisher of the death notice (usually a funeral director) and ask for contact details of the family so that we can get in touch.
We perform probate searches on the NSW Supreme Court website
We search every notice and cross check for a match (or possible match) for the latest Will. We write to the death notice contact to advise that we hold the Will and make sure the latest Will is used.
We are contacted by family or friends
If close family or friends know that NSW Trustee and Guardian is the executor of the Will, they can get in touch with us directly to notify us of the passing.
Using the Australian Death Notification Service
A relative can use the Australian Death Notification Service to notify banks, services providers and government agencies (like us) in one easy process.
Timing depends on how complex the estate is and other factors, including:
- how long it takes to sell assets such as real estate
- if anyone contests the Will
- locating any missing beneficiaries.
Most estates are finalised within 9 to 12 months, it may take longer if:
- there are complex issues
- the Will is contested
- determine an entitlement in the estate (for example, if there is no Will).
Your client service team will keep you informed of any unexpected delays that may occur.
If you would like NSW Trustee and Guardian as executor but your Will is being prepared externally, you are still able to appoint us.
You may like to include our name and address in your Will as follows:
NSW Trustee and Guardian
160 Marsden Street,
Parramatta NSW 2150
If you appoint NSW Trustee and Guardian as executor, you are able to store your documents in our WillSafe free of charge.
No. At this stage we don't offer co-executor services.
We only provide full estate administration services:
- when a Will is made with us, and NSW Trustee and Guardian is the executor of the estate
- when someone has been appointed as an executor and wishes to renounce the role in favour of NSW Trustee and Guardian
- this should be done as soon as possible after the death as it gets more difficult to renounce once the administration process has started
- where someone dies without a valid Will (this is known as dying intestate) - sometimes family members will administer the estate of a person who dies intestate, but in some circumstances we will administer the estate.
Deceased estate checklist
To help you get organised the Deceased estate document checklist outlines the documents we will need to administer your estate. Select each category to view the documents that you may need to provide.
Documents | |
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Death certificate An original death certificate is needed to administer the estate. If the estate value is under $100,000, a certified copy can be supplied in the interim, however an original certificate will be ordered through the estate. | |
The Will. We require the original Will if not held by NSW Trustee & Guardian. | |
Contact details for the beneficiaries named in the deceased person’s Will, including full names, residential addresses and contact telephone numbers. | |
Details of immediate family if there is no Will. |
Documents | |
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Home and contents insurance policies for all real estate. | |
Documents relating to any mortgages or loans (e.g. initial mortgage agreements, recent statements). | |
Any lease agreements and recent rental statement. |
Documents | |
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Recent bank accounts and term deposit statements. | |
Recent credit card and/or debit card statements. | |
Recent superannuation fund statements. | |
Copies of last dividend advice, current statements of holdings, any capital gains tax records (including sale and purchase contract notes, and any personal record books associated with investments.) | |
Details of any broker or financial advisor. | |
Details of any current employment, salary, wages. | |
Details of any business owned by the deceased person. |
Documents | |
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Recent accounts for telephone, electricity, gas, water rates, council rates, strata levies and land tax. | |
Any outstanding accounts (e.g. store accounts, nursing home, hospital, medical accounts). | |
Funeral account and receipt (if it has been paid). |
Documents | |
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Registration papers for all vehicles (including cars, caravans, trailers, boats, motorbikes). | |
Insurance policies for all vehicles. | |
The deceased person’s driver licence. |
Documents | |
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Funeral plan, funeral insurance or prepaid funeral details. | |
Life insurance policies and recent statement. |
Documents | |
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The last income tax return and assessment notice. | |
Any available income information for tax purposes for the current financial year e.g. receipts. | |
The deceased’s personal tax file number. |
You will need to provide the actual cards.
Documents | |
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Medicare card | |
Health fund membership card | |
Pension cards | |
Club membership cards. |
Contact NSW Trustee and Guardian
For general enquiries, call:
- 1300 109 290 within Australia
- +61 2 9240 0702 from overseas
More options to contact us.