Understanding Executors & Their Responsibilities In NSW

Appointing an executor is a crucial part of the estate planning process, yet many people don’t fully understand the scope of this role. In New South Wales, an executor is the person nominated in a legal will to manage the estate of someone who has passed away. This involves both legal and financial tasks, which can range from applying for probate to finalising debts and distributing assets.

Whether you’re writing a will or have been appointed as an executor, knowing what lies ahead can be incredibly useful. This guide outlines what an executor is, the steps they may need to take, potential complications such as invalid wills or disputes, and when to consider legal support to help navigate these obligations under NSW law.

An executor is responsible for carrying out the directions stated in a valid will. This means they manage everything from organising funeral arrangements to distributing assets to beneficiaries. The responsibilities can be broad, and depending on the size and complexity of the estate, they can also be time-consuming.

Here’s an overview of the core responsibilities an executor might undertake:

• They may be required to secure and manage assets, including property, bank accounts, shares, and personal items.
• They might need to lodge applications for probate if it’s required by financial institutions or government bodies.
• Executors often handle final tax returns and settle any debts the deceased person owed.
• They distribute remaining assets according to the instructions outlined in the will.

Appointing someone who understands the commitment involved is important, as failing to carry out these duties properly can lead to legal consequences.

Before an executor can distribute an estate, they may need to apply for probate—a legal document issued by the Supreme Court of NSW that confirms the will is valid and gives the executor legal authority to act.

The process of applying for probate typically involves the following steps:

• The executor collects the original legal will, a certified copy of the death certificate, and a full list of the deceased's assets and liabilities.
• A formal notice of intention to apply for probate is lodged with the NSW Supreme Court.
• Once the required period has passed, the probate application is submitted with all necessary documentation.
• If the court is satisfied, a grant of probate is issued, authorising the executor to proceed.

Without probate, banks, aged care providers, or government agencies may not release funds or transfer assets—making this an essential part of the will administration process.

Before any assets can be distributed to beneficiaries, the executor must identify and pay off outstanding debts. These can vary depending on the individual’s financial situation at the time of death.

To manage this, executors generally need to:

• Review financial records to identify loans, credit card balances, utility bills, and any other liabilities.
• Notify creditors and settle debts using funds from the estate.
• Finalise outstanding tax matters, including submitting a final income tax return on behalf of the deceased.
• Keep detailed records of all payments made during the administration process.

Ignoring debts or distributing assets prematurely can lead to complications for the executor, including the possibility of personal liability.

Sometimes, executors are faced with disputes or questions around the validity of a will. This can occur if the terms of the will are unclear, if someone believes they were unfairly left out, or if the will itself doesn’t meet the legal criteria under NSW law.

To avoid confusion, a legal will in NSW should:

• Be in writing (either typed or handwritten).
• Be signed by the person making the will (the testator).
• Be witnessed by two people, who are not beneficiaries under the will.

If these conditions are not met, the will may be challenged as invalid. This can result in delays, additional legal proceedings, and, in some cases, the distribution of the estate being decided under intestacy laws instead.

Executors may also face challenges such as:

• Family provision claims where someone believes they should have received more from the estate.
• Accusations of undue influence or questions around the testator's mental capacity at the time the will was signed.
• Conflicting instructions or vague terms in the will that require interpretation.

In these situations, it can be helpful to seek support from someone with knowledge of estate law in NSW to understand what steps to take.

While many estates are straightforward, others may involve more complex scenarios that make administration difficult. In these cases, legal support can be helpful in reducing confusion or delays.

Executors may consider consulting a solicitor if:

• The estate includes overseas assets or beneficiaries who reside internationally.
• The will is contested, or there are potential challenges from family members.
• There are unclear or contradictory instructions in the will.
• There is a risk of personal financial responsibility due to unresolved debts.
• Tax, aged care, or superannuation arrangements require clarification.

In some situations, the cost of legal support can be covered by the estate, depending on the circumstances.

If a person passes away without a valid will, they are said to have died intestate. In this case, the law determines how the estate is distributed. A relative or interested party must apply for letters of administration, which is similar to probate but applies where there is no will.

The key differences include:

• The court decides who will administer the estate, which may not align with the deceased's personal wishes.
• Assets are distributed according to a set formula under the NSW intestacy rules.
• Disputes may arise if multiple people believe they are entitled to manage the estate or receive a share.

This highlights the importance of preparing a valid and legally binding will to make it easier for loved ones after death.

Being named an executor can feel overwhelming, especially if you’re not familiar with the responsibilities involved. If you’re preparing your own will and want to choose someone suitable for the role—or if you’ve been appointed and are unsure of what steps to take—it’s helpful to seek tailored advice.

At Spencer Lawyers, our will solicitors on the Central Coast work with individuals who are navigating these exact situations. Whether you’re drafting a will or managing an estate in Gosford or the surrounding areas, we’re here to assist you in understanding the legal responsibilities involved. Get in touch to book a consultation.