What does an executor do in NSW?
Being named as an executor is an honour, and a serious responsibility. Here's what an executor does, whether probate is needed, and when you can say no.
An executor is the person named in a Will to manage the deceased person's estate and carry out the Will's instructions. It can be a time-consuming role, and executors can be held personally responsible if things go wrong.
Who can be an executor?
An executor can be a family member, a friend, a solicitor, or NSW Trustee and Guardian. Many people name two trusted people and a substitute in case one cannot act.
What does an executor do?
The executor's tasks generally include:
- locating the Will and arranging the funeral;
- obtaining the death certificate;
- identifying, protecting and insuring the estate's assets, and identifying its debts;
- notifying banks, superannuation funds and government agencies;
- applying for probate, where it is needed;
- collecting the assets, paying debts and taxes, and selling assets where required;
- distributing the estate to the beneficiaries in accordance with the Will; and
- keeping records and accounting to the beneficiaries.
Is probate always needed?
No. There is no legal requirement to obtain probate in every case. It is generally needed where the deceased held assets in their sole name, particularly real estate, while assets held as joint tenants usually pass automatically to the surviving owner. Banks and other institutions often have their own thresholds for releasing funds without a grant.
An application for probate is usually made within six months of the date of death, and an explanation is required if it is made later.
How long does it take?
Most estates take between nine and twelve months to finalise, and more complex or contested estates can take longer. Executors are generally cautious about distributing the estate early, because a family provision claim can be made within 12 months of the date of death.
Can an executor be personally liable?
Yes, in some circumstances. For example, an executor may be personally responsible if they distribute assets before debts and taxes are paid, sell assets for less than market value, or fail to insure property.
Can I say no?
Yes. Being named in a Will does not oblige you to act. If you do not want the role, you should decline as early as possible, before you start administering the estate. In some cases an independent professional executor can step in.
Key takeaway
An executor carries real legal responsibility. If you have been named, or you are choosing an executor for your own Will, get advice about what the role involves and whether probate will be needed.
This article is general information only and does not constitute legal advice. Every matter is different — speak with one of our lawyers about your specific circumstances.
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