Executor Rights & Limits — What You Can and Cannot Do

What executors can do — your authority explained

When you are appointed executor under a valid will and obtain a grant of probate, you become the legal personal representative of the deceased. This gives you authority to step into the deceased's shoes for the purpose of administering the estate. Your authority is both practical and legal:

• Secure and protect estate assets. You can take possession of property, secure bank accounts, change locks on real estate, and arrange insurance. This is often the very first step — before probate is even granted — to prevent loss or damage.
• Apply for probate. Probate is the court order confirming the will is valid and you are authorised to act. In NSW, this is generally expected within six months of death. In QLD, similar expectations apply. Without probate, third parties such as banks and land registries may not recognise your authority.
• Collect and realise assets. You can close bank accounts, sell shares, transfer property into the estate's name, and collect debts owed to the deceased. You may need to obtain valuations for real estate, businesses, or personal property.
• Pay debts and liabilities. You are entitled — and required — to pay the deceased's debts, taxes (including any outstanding income tax and potential capital gains tax on estate assets), funeral expenses, and administration costs from estate funds before distributing to beneficiaries.
• Engage professional advisers. You may engage solicitors, accountants, valuers, real estate agents, and other professionals at the estate's expense where their services are reasonably necessary for proper administration.
• Defend the estate. If someone challenges the will or brings a family provision claim, you may use estate funds to defend the will where it is appropriate to do so. This is a discretionary judgment — you must act reasonably and in the interests of the estate as a whole.
• Distribute according to the will. After debts are paid and any challenges resolved, you distribute the remaining assets to the beneficiaries as the will directs. You must follow the will exactly — you have no discretion to alter the distribution.

What executors cannot do — your legal limits

An executor's authority is not unlimited. You are a fiduciary — meaning you must act in the best interests of the estate and beneficiaries, not in your own interest. Breaching these limits can expose you to personal liability, removal by the court, and orders to compensate the estate.

• You cannot ignore the will. The will dictates the distribution. Even if you believe it is unfair, you cannot vary its terms without the consent of all affected beneficiaries or a court order. If a beneficiary asks you to "just give a bit more" to someone else, you cannot do so unilaterally.
• You cannot profit from your position. You cannot take a benefit from the estate beyond what the will provides (if you are also a beneficiary) and any commission the court approves. You cannot use estate assets for personal purposes, lend estate funds to yourself, or purchase estate assets at undervalue.
• You cannot favour one beneficiary. You must treat all beneficiaries impartially according to their entitlements. You cannot pay one beneficiary early while delaying another, or make decisions that advantage one beneficiary at the expense of others without proper justification.
• You cannot refuse to provide information. Residuary beneficiaries are entitled to proper accounts. While specific or pecuniary legatees have more limited rights, you cannot simply refuse to communicate. Secrecy breeds suspicion — and suspicion leads to legal challenges.
• You cannot delay unreasonably. Some delay is inevitable — probate takes time, assets must be identified and realised, and disputes may arise. But you cannot simply do nothing. Months of silence with no explanation is a common ground for beneficiary complaints, and in serious cases, for your removal.
• You cannot distribute before debts are paid. If you distribute assets to beneficiaries before paying the deceased's debts, you may become personally liable to creditors. The executor's year — the period of 12 months from death — is a guideline for completing administration, but you must be satisfied debts are paid before distributing.

Common traps for executors

Many executors are family members with no legal training. They accept the role out of duty to the deceased, unaware of the legal obligations they are taking on. These are the most common mistakes:

• Acting before probate is granted. You may secure assets before probate, but you generally cannot sell real estate, transfer shares, or close bank accounts until probate is obtained. Acting prematurely can create legal complications.
• Using estate funds for personal expenses. Even if you intend to repay them, using estate money for personal purposes is a breach of fiduciary duty. Keep estate funds in a separate account and maintain clear records.
• Failing to keep proper accounts. You must be able to show every dollar received and spent. Poor record-keeping is one of the most common grounds for beneficiary complaints and court applications.
• Paying beneficiaries before all debts are settled. If a creditor emerges after you have distributed, you may be personally liable. Wait until you are confident all debts, taxes, and claims have been dealt with.
• Taking sides in a family dispute. As executor, you must be neutral. Aligning yourself with one faction of the family against another undermines your impartiality and can be grounds for removal.
• Ignoring a family provision claim. If an eligible person notifies you of a claim, you must take it seriously. Distributing the estate while a claim is pending can result in personal liability.
• Continuing when conflicted. If you are both executor and a beneficiary — or if you have a personal interest in the outcome of a dispute — your duties may conflict with your interests. In that case, you should consider renouncing executorship or seeking court directions.

When executors need legal advice

Not every estate requires a lawyer. A straightforward estate with a clear will, cooperative beneficiaries, and simple assets can often be administered without legal assistance — though many executors still engage a solicitor for the probate application. However, you should seek advice promptly in these situations:

• A beneficiary has raised concerns or threatened to challenge the will
• The will is ambiguous or contains unclear provisions
• The estate includes complex assets — a business, trust structures, or interstate property
• There are potential claims against the estate by creditors or family provision applicants
• You have been accused of misconduct, delay, or self-dealing
• You are unable to locate a beneficiary or the original will
• You suspect the will may be invalid — for example, due to improper execution or the testator's lack of capacity
• The estate is insolvent or there are competing claims on limited assets

State differences — NSW vs QLD executor obligations

Frequently asked questions