Executor of a will: what they do and how to choose one

What is an executor of a will?

An executor is the person, or people, named in a will to carry out its instructions after the will-maker dies. Their role starts at the death. Once the Supreme Court grants probate, they have formal authority to deal with the estate.

Executors are usually trustees too. If your will holds money for young children or sets up a testamentary trust, the trustee keeps managing it after the estate itself is wrapped up.

If there's no will, or no executor who can act, the court appoints an administrator instead, usually a close relative. Our guide to dying without a will explains how that works.

What does an executor do?

These are the main executor duties, in the order most estates go through them. The details differ between states, so NSW is used as the example where a time limit matters.

1. Find the will. Check the person's papers, their solicitor and any will storage service. The original signed will is needed for probate.
2. Arrange the funeral if needed. The executor is responsible for arranging the funeral, and the cost is paid from the estate. Check the will and any letter of wishes for what the person wanted.
3. Get the death certificate and tell people. Notify banks, super funds, insurers, Centrelink and the ATO so debts stop growing and payments stop. The Australian Death Notification Service lets you notify many organisations at once.
4. Find and protect the assets. List the assets and debts, secure valuables and keep property insured. Jointly owned assets, family trust assets and super (unless it's paid to the estate) usually sit outside the estate.
5. Contact the beneficiaries. Tell them what the will leaves them. Executors can be held responsible for misreading the will or missing a beneficiary.
6. Apply for probate if it's needed. Probate is a Supreme Court order confirming the will and the executor's authority. In NSW you should apply within 6 months of the death or explain the delay. Some estates, such as those where everything was jointly owned, don't need it.
7. Pay debts and tax. Pay the funeral, debts and expenses. Lodge the person's final 'date of death' tax return (or tell the ATO one isn't needed) and any trust tax returns for the estate's income after death.
8. Wait out the claim period, then distribute. Hand over the gifts and the rest of the estate, and give beneficiaries an account of money in and out. In NSW you shouldn't distribute earlier than 6 months after the death, and if someone contests the will you wait until it's resolved.

How long does it take to administer an estate?

A straightforward estate often takes around a year. NSW Trustee and Guardian says it can take as long as 12 months to finalise an estate, and longer depending on the assets and the beneficiaries.

Probate processing, selling property, tracking down beneficiaries and claims against the estate all add time. In NSW, a family provision claim can be filed up to 12 months after the death, which is one reason executors don't rush to distribute.

If the executor is also trustee of a trust for children, that part of the job can run for many years.

Can an executor be paid?

A family member or friend acting as executor is usually unpaid, but there are exceptions:

• Commission from the court. In NSW, an executor can ask the Supreme Court to allow commission for their "pains and trouble" under section 86 of the Probate and Administration Act 1898. The court must first pass (approve) the estate accounts. Other states have their own rules.
• Agreement with the beneficiaries. The NSW Supreme Court says that if all the affected beneficiaries agree to pay the executor a fair amount, there's no need for court approval. That's quicker and saves legal costs.
• A gift in the will. Some people leave their executor a gift for taking on the job. An executor who receives a gift on condition that they act may not also be entitled to commission.
• Professional executors. Public trustees and trustee companies charge fees from the estate, often based on its value. A solicitor or accountant acting as executor generally needs a charging clause in the will to charge their usual professional fees.

Separately from any payment, the proper costs of running the estate, such as court fees and legal or accounting help, are paid from the estate rather than by the executor.

How do you choose an executor?

• Someone you trust, with good judgement. They'll handle your money and deal with your family at a hard time, and need to stay neutral if there's a dispute.
• An adult with the time to do it. Anyone over 18 can act. Someone younger can't act until they turn 18. Think about their age and health compared with yours.
• Someone organised. The job is mostly paperwork, deadlines and follow-up calls.
• Someone nearby. An executor in Australia, ideally in your state, will find it easier to deal with the court, banks and any property.
• Someone who has said yes. Nobody has to accept the role, so ask them before you name them.

Most people choose a partner, an adult child, a sibling or a close friend. Others choose a professional: a solicitor, a trustee company or the public trustee in their state.

Co-executors and backups

You can appoint more than one executor to act together, and a backup in case your first choice can't act. South Australia's Law Handbook says it's usually safest to appoint more than one executor, except in the simplest cases.

Co-executors have to agree, so choose people who get on. In a Willies will you can name one or two executors. If you name two and one dies, renounces or can't act, the other can carry on alone, and a backup executor you name steps in if neither can.

Can a beneficiary be an executor?

Yes. It's common and usually sensible: a partner or adult child is often both. NSW Trustee and Guardian's guidance for executors covers people in both roles, for example declaring what they inherit in their own tax return.

An executor who inherits must still treat every beneficiary fairly and follow the will, not their own preferences. It's best they don't also witness your will. See who can witness a will.

Can an executor refuse or step down?

Yes. Being named doesn't oblige anyone to act. NSW guidance says you are under no legal obligation to act as executor, and that if you decide not to, you should say so as soon as possible and before you start administering the estate. South Australia's Succession Act 2023 says the same thing in section 66.

Declining is called renouncing probate, and it's done with a signed form filed with the Supreme Court. In Victoria, a lawyer should explain the effect of renouncing and witness the signature. If you've already started dealing with the estate, get legal advice before stepping back.

If one executor renounces, a co-executor or backup can act. If nobody named can, the court appoints an administrator, who may be a beneficiary, a relative or the public trustee.

Can the Public Trustee be my executor?

Yes. Every state and territory has a public trustee that can act as executor: NSW Trustee & Guardian, State Trustees in Victoria, and a Public Trustee in the other states and territories. Private trustee companies offer the same service.

They charge fees from your estate under their own fee rules, often a percentage of the estate's value. A professional executor can make sense if there's nobody suitable, your family is in conflict or the estate is complex. South Australia's Law Handbook suggests comparing their fees with what a lawyer would charge an individual executor.

What is an executor personally liable for?

An executor must protect the estate, pay the funeral, expenses and debts, then distribute what's left as the will says, within a reasonable time. Beneficiaries can go to court if an executor doesn't. Common ways executors end up liable include:

• Distributing before debts and tax are settled, leaving creditors or the ATO short.
• Selling assets for less than market value.
• Leaving property uninsured or unsecured, and it's then damaged.
• Misreading the will or missing a beneficiary.
• Delays that cause the estate a loss.
• Using estate money or property for themselves.

An executor who acts honestly, keeps records and asks for help when unsure is in a good position. A lawyer can help with anything contentious, and with a large or complicated estate.

How Willies helps your executor

An executor's first job is often finding things. With the Willies Plan, your signed will is kept in your vault, and your encrypted digital legacy plan lists your accounts, crypto, property, super, insurance and debts: where each one is, how to get into it and who should get what.

The plan is encrypted on your device before it reaches us, so we can't read it. Opening it takes two keys: one we hold and one in the executor kit you print. After a death is verified, your nominated executor signs in, enters their key and the plan opens for them. It records where your keys and passwords are kept, never seed phrases themselves.

The first year of the plan comes with every will. After that it's A$49 a year, renewing automatically unless you turn it off. See how to make a will for the rest of the process.