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Core duties of an NSW executor
The role of executor carries a series of duties that arise from the moment of death and continue until the estate is fully administered. The following summarises the key duties in the order they typically arise. Each of these duties is enforceable — failure to discharge them can expose the executor to personal liability.
Locate the Will & Apply for Probate
The executor must locate the original will, determine whether it is the last valid will, and apply for a grant of probate from the Supreme Court of NSW. Probate should generally be applied for within 6 months of the date of death. Delay beyond this period must be explained.
Identify & Secure Assets
The executor must identify all estate assets — real property, bank accounts, shares, personal effects, and any other property of the deceased — and take steps to secure and insure them. This includes notifying banks, securing vacant properties, and ensuring appropriate insurance is in place.
Notify Beneficiaries & Creditors
Beneficiaries named in the will and persons who would take on intestacy must be notified. Creditors must also be given notice of the death so that claims may be made against the estate. The executor should advertise for claims under the Trustee Act 1925 (NSW) s 60 to obtain protection against late claims.
Pay Debts & Tax
The executor must pay the deceased's debts, funeral expenses, and any tax liabilities — including income tax to the date of death and any capital gains tax arising from the disposal of assets. The executor should also attend to the estate's tax returns and obtain a tax clearance where appropriate.
Distribute the Estate
Once debts, tax, and administration expenses have been paid, the executor distributes the remaining assets to the beneficiaries in accordance with the will. Distribution should not occur until the executor is satisfied that all claims have been dealt with and any applicable limitation periods have expired.
Keep Accounts & Records
The executor must keep proper accounts of all estate transactions and be prepared to provide them to beneficiaries and to the Court if required. Beneficiaries are entitled to be informed about the administration and to inspect estate accounts.
The 6-month probate expectation in NSW
While there is no absolute statutory deadline for applying for probate in NSW, the Supreme Court generally expects an application to be made within six months of the date of death. An application made after six months must be accompanied by an affidavit explaining the delay. Repeated or prolonged delay without reasonable explanation may expose the executor to an application by beneficiaries for orders compelling the executor to proceed, or for the executor to be passed over or removed.
The six-month period is not a "wait and see" period — it is the time within which the executor should be actively progressing the administration. Common causes of delay include difficulty locating the original will, disputes among beneficiaries, or the need to investigate potential claims against the estate. These should be documented and explained in the supporting affidavit.
The legal framework for executor duties in NSW
Executor duties in NSW are governed by a combination of statute and common law. The key legislative instruments are the Probate and Administration Act 1898 (NSW), the Succession Act 2006 (NSW), and the Trustee Act 1925 (NSW). Understanding the statutory framework is essential — both for executors who need to comply with it and for beneficiaries who need to assess whether an executor is meeting their obligations.
Probate and Administration Act 1898 (NSW)
The Probate and Administration Act 1898 is the foundational statute governing grants of probate and letters of administration in New South Wales. Despite its age, it remains the operative legislation for the procedural aspects of estate administration. Key provisions relevant to executor duties include:
- Part 2 — Jurisdiction: Sections 3–29 vest jurisdiction in probate matters in the Supreme Court of NSW. The Court has both common form jurisdiction (uncontested grants) and solemn form jurisdiction (contested grants after a hearing). An executor applies in common form unless the will is challenged.
- Part 3 — Grants of Probate and Administration: Sections 30–40F set out the process for obtaining a grant, including the documents required, the priority of persons entitled to administration, and the circumstances in which the Court may pass over an executor. Section 40A requires that notice of an intended application for probate be published on the NSW Online Registry at least 14 days before the grant is made.
- Section 44 — Probate in solemn form: Where a will is contentious or its validity is in doubt, an application for probate in solemn form may be made. This involves a hearing and the court being satisfied on the evidence that the will is valid. Proceedings in solemn form bind all parties and are conclusive as to the will's validity.
- Section 61 — Passing over executors: The Court may pass over an executor who is unfit to act, has misconducted themselves, or who is not a fit and proper person to administer the estate. This is the mechanism by which a problematic executor may be replaced by an administrator appointed by the Court.
- Section 61B — Administration pendente lite: Where probate proceedings are pending and there is a need to preserve the estate, the Court may appoint an interim administrator to manage estate assets while the dispute is resolved. This protects the estate from dissipation during litigation.
- Section 62 — Renunciation: An executor who does not wish to act may formally renounce probate by filing a renunciation with the Court. Renunciation must occur before the executor has intermeddled in the estate. Once an executor has taken steps in the administration — such as paying funeral expenses or securing assets — they may be taken to have accepted the office.
Succession Act 2006 (NSW)
The Succession Act 2006 governs the substantive law of wills, probate, and estate administration. Key provisions relevant to executor duties include:
- Section 44 — Application of Part 2.2: Provides that the Court must be satisfied of due execution before granting probate. The executor bears the responsibility of proving the will was properly executed in accordance with section 6 of the Act.
- Section 63 — Removal of executors: The Court may remove an executor who is unsuitable or unable to act, or who has misconducted themselves. This power is exercised with the welfare of the beneficiaries as the paramount consideration.
- Section 66 — Inventory and accounts: Beneficiaries may apply to the Court for an order compelling an executor to file an inventory of estate assets and an account of their administration. This is a key mechanism by which beneficiaries can enforce their right to information.
- Chapter 3 — Family provision: While primarily relevant to beneficiaries, executors must be aware of the family provision regime. An executor who distributes the estate before the 12-month limitation period for family provision claims expires risks personal liability if a claim is later brought. Executors should not distribute within 12 months of death without either the consent of all eligible persons or a release from the claimant.
Trustee Act 1925 (NSW)
Executors hold estate assets on trust for the beneficiaries, and the Trustee Act 1925 imposes additional obligations that supplement those under the probate statutes:
- Section 14C — Investment powers: Executors have a duty to invest estate funds prudently pending distribution. The Trustee Act sets out the standard of care required and the range of permitted investments.
- Section 60 — Advertising for claims: An executor may protect themselves against late claims by unknown creditors or beneficiaries by advertising for claims in accordance with section 60. Where the statutory procedure is followed, the executor is protected from personal liability for claims that emerge after distribution.
- Section 63 — Judicial advice: An executor who is uncertain about how to administer the estate — for example, how to interpret a clause in the will, or whether to defend a family provision claim — may apply to the Supreme Court for judicial advice. An executor who acts in accordance with judicial advice is protected from personal liability.
- Section 90 — Relief from personal liability: The Court may relieve an executor from personal liability for breach of trust if the executor acted honestly and reasonably and ought fairly to be excused. This is not automatic — the executor must satisfy the Court that relief is warranted.
Key cases on executor duties in NSW
- Miller v Cameron (1936) 54 CLR 572: The leading High Court authority on removal of executors. The Court confirmed that the test for removal is the welfare of the beneficiaries — not proof of misconduct by the executor. An executor may be removed even without fault if their continued involvement would impede the proper administration of the estate.
- Bates v Cooke [2015] NSWCA 278: The NSW Court of Appeal confirmed that beneficiaries have standing to apply for the removal of an executor where the executor's conduct threatens the proper administration of the estate. The case emphasised that the Court's power is protective, not punitive.
- Re Estate of Henry [2007] NSWSC 42: Addressed the executor's duty to account to beneficiaries. Confirmed that residuary beneficiaries have stronger rights to information than specific beneficiaries, and that executors must keep proper records and be prepared to disclose them.
- Estate of Roberts [2020] NSWSC 703: Considered the circumstances in which an executor may be passed over under section 61 of the Probate and Administration Act 1898. The Court confirmed that the power to pass over extends beyond misconduct to cases where the executor is unsuitable by reason of conflict of interest, incapacity, or inability to act impartially.
Executor liability in NSW
An executor who breaches their duties may be personally liable for losses suffered by the estate or its beneficiaries. Common sources of liability include:
- Distributing prematurely: Distributing the estate before all debts, tax, and claims have been dealt with. If a valid claim later emerges, the executor may be personally liable to meet it.
- Failing to secure assets: Allowing estate assets to be lost, damaged, or misappropriated through failure to take reasonable protective steps.
- Self-dealing: Using estate assets for personal benefit or entering into transactions with the estate without proper authority.
- Conflicts of interest: Placing personal interests ahead of the estate's interests — for example, purchasing estate assets at undervalue.
- Failure to account: Failing to keep proper records or refusing to provide accounts to beneficiaries.
- Failure to invest prudently: Allowing estate funds to sit uninvested for extended periods, or investing in speculative or unauthorised assets, may expose the executor to a claim for the lost income or capital.
- Distributing to the wrong beneficiaries: Misinterpreting the will and distributing assets to persons who are not entitled to them — or in the wrong proportions — is a breach of duty for which the executor is personally liable.
Executors should also be aware that the NSW Supreme Court may, on application by an interested person, remove an executor who has misconducted themselves, is unfit to act, or whose continued involvement would impede the proper administration of the estate.
Common mistakes by executors in NSW
Executor mistakes are common — particularly among lay executors who are administering an estate for the first time. Understanding the most frequent errors helps you avoid them and protects you from personal liability.
Distributing the estate too quickly
This is the single most common and most dangerous mistake. An executor distributes the estate to beneficiaries within weeks or months of death — before all debts have been identified, before tax has been assessed, and before the 12-month family provision limitation period has expired. If a debt, tax liability, or family provision claim emerges later, the executor is personally liable. The rule is simple: do not distribute until you are certain all claims have been dealt with. For most estates, this means waiting at least 6–12 months from the date of death.
Intermeddling before deciding whether to accept the role
An executor who takes any step in the administration of the estate — even something as simple as paying the funeral expenses, notifying the bank of the death, or securing the deceased's property — may be taken to have accepted the office and may no longer be able to renounce. If you are uncertain whether you want to act as executor, obtain legal advice before doing anything. Once you intermeddle, you may be committed to the role.
Failing to keep proper accounts
Executors who treat estate funds as an extension of their own finances — depositing estate money into personal accounts, failing to keep receipts, or mixing estate and personal transactions — are committing a serious breach of duty. Estate accounts must be kept separate from personal accounts. Every transaction must be documented. Beneficiaries have a right to inspect these accounts, and an executor who cannot provide them faces a court order compelling accounts — and potentially an adverse costs order.
Ignoring beneficiary communications
Executors sometimes stop communicating with beneficiaries — particularly where there is tension, conflict, or the beneficiaries are making persistent demands. This is a mistake. While an executor does not need to respond to every communication immediately, a sustained failure to keep beneficiaries reasonably informed can itself be grounds for an application to remove the executor. Regular, clear communication — even if it is just a brief update on progress — protects you from complaints and applications.
Using estate assets for personal benefit
An executor who lives in the deceased's house rent-free, drives the deceased's car, or withdraws estate funds for personal use — even if they intend to repay them — is committing a breach of duty. Estate assets belong to the beneficiaries, subject to the payment of debts and expenses. The executor holds them on trust. Personal use of estate assets is self-dealing and exposes the executor to removal, a requirement to account for the benefit taken, and potentially an order for compensation.
Failing to obtain legal advice when needed
Many executors try to administer the estate without legal assistance to save costs. While this may be appropriate for very small, straightforward estates, it is risky for estates with any complexity — particularly those involving real property, business interests, potential family provision claims, or disputes among beneficiaries. An executor who proceeds without advice and makes a mistake cannot defend themselves by saying they did not know the law. The cost of legal advice is an estate expense and is usually modest compared to the cost of fixing a mistake.
Executor concerns?
If you are an executor uncertain about your duties, or a beneficiary concerned about an executor's conduct, seek legal advice promptly. Early intervention can prevent losses and avoid costly litigation. Request advice →
What to do now — practical next steps
If you have been appointed as executor
Decide Whether to Accept the Role
Before doing anything, decide whether you want to act as executor. The role carries significant responsibilities and potential personal liability. If you do not wish to act, you can renounce — but only before you intermeddle. If you are uncertain, obtain legal advice before taking any step in the administration. If the testator is still alive and you do not wish to act after their death, you can discuss this with them now — they may wish to appoint an alternative executor.
Secure the Estate Immediately
Once the testator has died, your first practical duty is to secure estate assets. Ensure the deceased's property is locked and insured. Notify banks of the death so that accounts are frozen against unauthorised access. Locate the original will. Do not allow beneficiaries or family members to remove assets from the deceased's home — this is not their property until it is distributed through the estate.
Obtain Legal Advice Early
Engage a probate lawyer to guide you through the process. They will advise on whether probate is required, prepare the application, and help you identify and manage risks — including potential family provision claims, tax liabilities, and creditor claims. The cost of legal advice is usually met from the estate, not by you personally.
Apply for Probate Promptly
File the application for probate within six months of death. Delay beyond this period requires an explanation. Your lawyer will prepare the documents, including the inventory of property (listing all estate assets and their values), the executor's affidavit, and the notice of intended application. Once probate is granted, you have the legal authority to deal with estate assets.
Administer the Estate Methodically
Call in assets, pay debts and tax, advertise for claims under section 60 of the Trustee Act, and keep beneficiaries informed. Do not distribute the estate until you are satisfied that all debts have been paid, all tax obligations have been met, and the 12-month family provision period has expired (or you have obtained releases from all eligible persons). Keep proper accounts of every transaction.
If you are a beneficiary concerned about an executor
Make a Written Request
Send a clear, polite, written request to the executor asking for an update on the administration, a summary of estate assets and liabilities, and a timeline for distribution. Keep a copy. This creates a record of your request and the executor's response (or failure to respond). Many executors will respond to a reasonable written request even if they have been ignoring informal communications.
Understand What the Executor Is Required to Do
Review the executor's duties on this page and assess whether the executor appears to be discharging them. Is there unreasonable delay? Is the executor failing to communicate? Are estate assets being misused? Distinguish between delay caused by the complexity of the estate and delay caused by the executor's inaction or misconduct.
Obtain Legal Advice
If the executor does not respond within a reasonable time — or if the response is inadequate or raises further concerns — obtain legal advice. A probate litigation lawyer can assess the strength of any potential application to compel the executor, seek accounts, or remove the executor. A solicitor's letter to the executor is often sufficient to prompt action.
Escalate Proportionately
Not every dispute needs to go to court. Start with communication, then a solicitor's letter, then — if necessary — a court application. The court expects parties to attempt resolution before litigating. But if the executor's conduct is causing real harm — assets are being dissipated, distributions are being made improperly — do not delay. An urgent court application can preserve the estate while the dispute is resolved.
Lodge a Caveat if Probate Has Not Been Granted
If probate has not yet been granted and you have concerns about the will or the executor, a caveat can be lodged to prevent probate being sealed while your concerns are investigated. This is a protective measure — not a final solution — but it preserves the position while you obtain advice.
Need guidance on NSW executor duties?
Whether you have been appointed as an executor and need to understand your obligations, or you are concerned about an executor's conduct, we can advise on your position under NSW law.
Related services
Executor duties intersect with multiple areas of estate law. These related pages may also be relevant:
NSW Beneficiary Rights
Understanding beneficiary rights — including the right to information, accounts, and to seek removal of an executor — is the other side of the executor duties coin.
Explore beneficiary rights →NSW Probate Timeline
The key deadlines every executor must know: the 6-month probate expectation, the 12-month family provision limit, and the timing of notices and distributions.
Explore probate timeline →NSW Caveats & Objections
If probate has not been granted and there are concerns about the will or the executor, understanding the caveat procedure is essential.
Explore caveats →Executor Misconduct
Where an executor is actively breaching their duties — through self-dealing, misappropriation, or serious conflict of interest — removal and compensation are available.
Explore executor misconduct →Challenging a Will in NSW
Executors need to understand the grounds on which a will can be challenged — and beneficiaries need to understand when a challenge is available.
Explore will challenges →QLD Executor Duties
If the estate is in Queensland, different rules apply under the Succession Act 1981 (QLD). The 6-month notice requirement and executor priorities differ from NSW.
QLD executor duties →Frequently asked questions — NSW executor duties
Yes. Being named as executor does not compel you to act. You may renounce probate before you have intermeddled (taken any steps as executor) in the estate. Renunciation is effected by filing a formal renunciation with the Supreme Court. If you have already intermeddled — for example, by paying funeral expenses or securing assets — you may be taken to have accepted the office and may need to apply to the Court for leave to retire. If you are uncertain, seek legal advice before taking any steps in relation to the estate.
A straightforward, uncontested probate application in NSW typically takes 4 to 8 weeks from the date of filing to the grant being made, depending on the complexity of the estate and the workload of the Supreme Court Probate Registry. However, several factors can extend this timeline: difficulty locating assets or the original will, the need to advertise for creditors, disputes among beneficiaries, or the lodgement of a caveat. If probate is contested or the matter proceeds to a solemn form hearing, the process can take many months or more than a year.
If an executor unreasonably delays applying for probate, beneficiaries or other interested persons may apply to the Supreme Court for orders compelling the executor to proceed, or for the executor to be passed over or removed and an administrator appointed. The Court expects probate applications to be made within six months of death, and delay beyond this period must be explained. An executor who delays without reasonable cause may also be ordered to pay costs personally. If you are a beneficiary waiting for an executor to act, you should seek legal advice about the remedies available.
An executor is appointed by the will of the deceased. They derive their authority from the will itself, and the grant of probate confirms that authority. An administrator is appointed by the Court where there is no will (intestacy), where the will does not appoint an executor, or where the named executor cannot or will not act (including where the executor has been passed over or removed). The grant to an administrator is called letters of administration. Administrators have substantially the same duties as executors, but their authority derives from the Court's grant rather than from the will. In an intestacy, the administrator distributes the estate in accordance with the statutory order set out in the Succession Act 2006 rather than the terms of a will.
Potentially, yes. An executor who breaches their duties — for example, by distributing the estate prematurely, failing to secure assets, or paying the wrong beneficiaries — may be personally liable to compensate the estate or its beneficiaries for the resulting loss. This liability is personal — it is not limited to the assets of the estate. However, the Court has power under section 90 of the Trustee Act 1925 (NSW) to relieve an executor from personal liability if they acted honestly and reasonably and ought fairly to be excused. This relief is discretionary and not guaranteed. The best protection is to obtain legal advice, follow it carefully, and document your decisions. If you are uncertain about a particular step, apply to the Court for judicial advice under section 63 of the Trustee Act — acting in accordance with judicial advice provides protection from liability.
Strictly, no — the Supreme Court Probate Registry accepts probate applications filed by individuals without legal representation. However, for any estate that is not very small and straightforward, professional assistance is strongly recommended. The application requires an affidavit in proper form, an inventory of property with valuations, publication of a notice of intended application, and service on affected persons. Errors in the application can cause delay and additional expense. More importantly, a lawyer can advise on the risks you face as executor — including potential family provision claims, tax liabilities, and the scope of your duties — that you may not identify on your own. The cost of legal advice is usually paid from the estate, not by you personally.
Yes. The Supreme Court may remove an executor under section 63 of the Succession Act 2006 or pass over an executor under section 61 of the Probate and Administration Act 1898. The test is the welfare of the beneficiaries — not proof of misconduct (though misconduct is a common ground). An executor may be removed or passed over where they are unfit to act (through incapacity, bankruptcy, or criminal conviction), where they have misconducted themselves (through self-dealing, misappropriation, or serious delay), where there is an irreconcilable conflict of interest, or where the relationship between the executor and beneficiaries has broken down to the point that the proper administration of the estate is impeded. An application for removal is made by summons in the Supreme Court. The Court may appoint a substitute administrator — often an independent solicitor or the NSW Trustee & Guardian — to complete the administration.