National Crime Start here: what an executor needs to understand first
If you have been named as an executor — or are considering taking on the role — there are a few things you need to know from the outset:
- You are a fiduciary. This means you must act in the best interests of the estate and its beneficiaries, not your own. You have a duty of loyalty, a duty to account, and a duty to act without unreasonable delay.
- You can be personally liable. If you distribute the estate incorrectly, fail to pay debts, ignore a valid claim, or breach your duties, you may be ordered to compensate the estate from your own pocket.
- The role is not about control — it is about administration. You do not "own" the estate. You administer it according to the will and the law. You cannot treat estate assets as your own.
- You have a right to be protected. You can seek legal advice at the estate's expense in many circumstances. You can apply to the court for directions if you are uncertain about your obligations. You are entitled to be indemnified from the estate for properly incurred expenses.
- Time matters. In NSW, probate should generally be applied for within six months of death. In Queensland, there is no fixed statutory timeline, but unreasonable delay can still expose you to complaint.
Executor role map: what you can do and cannot do
Understanding the boundaries of your authority is essential. Here is a clear map of what the law permits — and what it does not.
✅ What you can do
- Apply for a grant of probate
- Identify, secure, and insure estate assets
- Pay the deceased's debts, tax, and funeral expenses
- Sell estate assets to pay debts or to distribute according to the will
- Engage solicitors, accountants, valuers, and other professionals (at estate expense, where reasonable)
- Apply to the court for directions if you are uncertain about your duties
- Defend the will if it is challenged (if you reasonably believe it is valid)
- Wait until the family provision claim period has expired before making final distributions (to avoid personal liability)
- Communicate with beneficiaries about the progress of the administration
❌ What you cannot do
- Take estate assets for your own benefit (even if you are also a beneficiary)
- Distribute the estate before paying all known debts and providing for tax
- Ignore beneficiaries' reasonable requests for information (residuary beneficiaries have a right to accounts)
- Prefer one beneficiary over another without clear legal justification
- Sell estate assets to yourself or your family at less than market value
- Charge fees for your work as executor unless the will or the court authorises it
- Delay the administration unreasonably — even if you are busy, grieving, or uncertain
- Conceal the existence of a later will or codicil
- Refuse to produce the will to someone named in it
Common mistakes executors make
Even well-meaning executors make errors. Here are the most common ones — and how to avoid them.
Distributing too early
Making final distributions before the family provision claim period has expired (generally 12 months from death in NSW, 9 months in QLD). If a claim is later made and there is no money left, you may be personally liable. Wait, or obtain releases from all potential claimants.
Failing to communicate with beneficiaries
Ignoring beneficiary emails or refusing to provide basic information is one of the fastest ways to generate a complaint. Even if you are busy, periodic updates protect you. Residuary beneficiaries are entitled to accounts.
Treating estate assets as personal assets
Moving estate funds into your personal account, using estate property, or making personal use of estate assets — even temporarily — is a breach of fiduciary duty. Keep estate money in a separate estate account.
Not obtaining proper valuations
Selling estate assets (especially real property or business interests) without independent valuations can lead to allegations that you sold at undervalue — particularly if the buyer is connected to you.
Failing to search for later wills
If a later will exists and you probate an earlier one, the grant may be revoked. Conduct reasonable searches — ask the deceased's solicitor, check safe custody, and advertise if necessary.
Not seeking legal advice when needed
Executors are entitled to legal advice at the estate's expense for proper administration matters. Trying to handle complex issues alone — especially disputes — is a false economy that can create costly problems.
If you are being accused of misconduct
Being accused of executor misconduct, delay, self-dealing, or failing to account is serious. It is also stressful. Here is what you need to know:
Do not panic — but do not ignore it
Allegations from beneficiaries are common. Not every complaint means you have done something wrong, and not every complaint will result in court action. However, ignoring formal allegations — particularly letters from solicitors — makes the situation worse.
Take these immediate steps
- Do not respond in anger or without advice. Anything you say can be used against you. Get legal advice before replying to serious allegations.
- Secure your records. If you have kept proper accounts, correspondence, and records of your decisions, you are in a much stronger position. If you have not kept records, start reconstructing them now.
- Understand the specific allegation. Is it delay? Failure to account? Self-dealing? Suspicious distributions? Different allegations require different responses.
- Consider whether you need to apply for directions from the court. If you are uncertain about your obligations, a court application for judicial advice can protect you from later criticism.
- Do not resign as executor without advice. Resigning does not necessarily end your exposure for things that have already happened. Get legal advice about whether resignation is appropriate.
Executor misconduct allegations can escalate
A beneficiary who alleges misconduct may seek your removal as executor, an order that you provide accounts, or an order that you personally compensate the estate. The threshold for removal is relatively high — the court will not remove an executor simply because a beneficiary is unhappy — but persistent non-communication, delay, or evidence of self-dealing changes the picture significantly. Seek legal advice early.
What beneficiaries can and cannot do to you
- Can: Request information and accounts (residuary beneficiaries).
- Can: Apply to the court for orders that you provide accounts or progress the administration.
- Can: Apply for your removal as executor — but must satisfy the court that removal is warranted.
- Cannot: Remove you themselves. Only the court can remove an executor.
- Cannot: Direct you how to administer the estate.
- Cannot: Demand immediate payment before debts are paid and the claim period has expired.
If probate is delayed
Probate can be delayed for many reasons — some within your control, some not. Here is how to handle common delay scenarios.
Reasons probate may be delayed
- The original will cannot be found (you may need to apply for a grant of a copy or prove a lost will)
- The will is ambiguous or unclear (you may need to seek the court's construction of the will)
- There is a dispute among beneficiaries about who should be executor
- A beneficiary has lodged a caveat against the grant of probate
- The estate is complex — significant assets, foreign property, business interests
- There are questions about the will's validity (capacity, undue influence, forgery)
- You are uncertain about your duties and need judicial advice
What you should do during a delay
- Communicate with beneficiaries. Explain the reason for the delay and what you are doing to resolve it. Silence breeds suspicion.
- Take interim protective steps. Even without probate, you can (and should) take steps to secure estate assets — insure property, secure valuables, freeze accounts if necessary.
- Get legal advice about the specific obstacle. Whether it is a caveat, a lost will, or a validity challenge, each has a specific legal pathway.
- Document your efforts. If a beneficiary later alleges unreasonable delay, your records of what you did and why will be your defence.
Probate held up by a caveat or dispute?
Caveats, competing claims for grant, and will validity disputes can stall probate indefinitely. We can advise on the fastest path to resolution — whether that is negotiation, a warning to the caveator, or a court application.
If a will is challenged
As executor, you may face a challenge to the will you are propounding — on grounds such as lack of capacity, undue influence, fraud, forgery, or lack of knowledge and approval. Here is what to do.
Your role when a will is challenged
If you reasonably believe the will is valid, you have a duty to defend it. You do not have to defend it personally at your own expense — the costs of defending a will are generally payable from the estate, provided your defence is reasonable. However, if you defend a will that you know or ought to know is invalid, you may be ordered to pay costs personally.
Steps to take
- Get legal advice immediately. A will challenge is a serious legal proceeding. You need specialist advice about the strength of the challenge and your obligations as executor.
- Gather the evidence. Locate the original will, any earlier wills, the solicitor's file (if the will was prepared by a solicitor), medical records, and witness details.
- Consider whether the challenge has merit. You may be in a difficult position if you have reason to doubt the will's validity yourself. Legal advice is essential.
- Do not distribute the estate. Once a challenge is made, you should not distribute the estate until the challenge is resolved — or at least until you have obtained releases or court approval.
- Consider whether to seek directions from the court. If you are uncertain whether to defend or concede, applying to the court for directions protects you from costs risk.
NSW vs QLD — key differences for will challenges
- Governed by the Succession Act 2006 (NSW).
- Common challenges: lack of testamentary capacity (Banks v Goodfellow), undue influence (coercion), fraud/forgery, lack of knowledge and approval, suspicious circumstances.
- Supreme Court of NSW — Probate List hears will validity challenges.
- Costs: the "probate exception" means that where the testator (or those with an interest in the residue) caused the litigation, costs may come from the estate. Otherwise, costs generally follow the event.
- Family provision claims under Chapter 3 — generally within 12 months of death.
- Governed by the Succession Act 1981 (QLD).
- Similar grounds for challenge as NSW — capacity, undue influence, fraud, lack of knowledge and approval.
- Supreme Court of Queensland hears will validity challenges.
- Note: QLD Criminal Code s 488 — forging a will or uttering a forged will attracts up to 14 years imprisonment.
- Family provision claims under Part 4 — generally within 9 months of death (shorter than NSW).
Frequently asked questions
Yes. Executors can be sued by beneficiaries for breach of fiduciary duty, delay, failure to account, improper distribution, or self-dealing. You can also be sued by creditors if you distribute the estate without paying known debts. This is why executors commonly wait 6-12 months before distributing and obtain legal advice when uncertain. The estate generally indemnifies you for properly incurred liabilities, but not for losses caused by your own breach of duty.
No. You are not obliged to act as executor simply because you are named in a will. You can renounce (decline) the role — but you should do so before you take any steps in the administration (this is called "intermeddling"). Once you have started acting as executor, you generally cannot renounce without the court's permission. If you are uncertain whether to accept, get legal advice before taking any steps.
Generally, no — unless the will specifically authorises you to charge, or all beneficiaries consent, or the court makes an order allowing commission. The default rule is that an executor acts without payment, though you are entitled to be reimbursed from the estate for properly incurred expenses (such as legal fees, valuation costs, and administrative expenses).
It depends on the nature of the mistake. Honest, reasonable errors are treated differently from deliberate or reckless conduct. If you have acted in good faith and on reasonable grounds, the court has discretion to relieve you from personal liability under trustee legislation in both NSW and QLD. However, you should not rely on this discretion — it is not guaranteed. The best protection is to get legal advice when you are uncertain, keep proper records, and apply to the court for directions if needed.
A simple estate might be administered within 6-12 months. A complex estate with disputes, property sales, business interests, or family provision claims can take significantly longer — sometimes years. NSW courts expect probate to be applied for within 6 months of death. The key is that delay must be reasonable and explained — beneficiaries should be kept informed of progress and the reasons for any extended timeline.