Being named as the executor of a loved one’s will is a sign of trust. It often comes at a difficult time, while you are grieving, and it carries real legal responsibilities. Understanding what the role involves, and where the risks lie, can help you carry out the deceased’s wishes properly and protect yourself along the way.

What is an executor of a will?

An executor is the person appointed in a will to manage a deceased person’s estate. The estate includes the deceased’s property, money, investments, personal belongings, debts and other financial interests.

The executor is responsible for carrying out the will and ensuring that the estate is administered properly.

A person may appoint one executor or several executors. Where more than one executor is appointed, they will generally need to make important decisions and sign documents jointly.

What are an executor’s main duties?

An executor’s duties commonly include:

• locating the original will and arranging the funeral;
• identifying and protecting the deceased’s assets;
• notifying banks, insurers, superannuation funds and other organisations of the death;
• applying to the Court for a grant of representation (probate), if required;
• identifying and paying the deceased’s debts and estate expenses;
• arranging valuations and, where necessary, selling or transferring assets;
• completing required tax returns and paying any tax liabilities;
• keeping proper records and accounts;
• responding to claims against the estate;
• acting impartially between beneficiaries;
• distributing the estate in accordance with the will; and
• keeping beneficiaries reasonably informed about the administration.

An executor must act honestly, carefully and in the best interests of the estate. Estate money must be kept separate from the executor’s personal funds.

In NSW, applications for probate are made to the Supreme Court of NSW. Whether probate is needed depends on the assets in the estate and the requirements of the organisations holding them.

Can an executor be personally liable?

An executor is not usually personally responsible for the deceased’s debts. Those debts are generally paid from the estate. However, an executor may become personally liable if they fail to perform their duties properly.

Personal liability may arise where an executor:

• distributes assets before confirming and paying the estate’s debts, expenses or tax;
• distributes the estate too early while a potential claim remains unresolved;
• pays beneficiaries contrary to the terms of the will;
• misuses estate money or property;
• causes loss through dishonesty, carelessness or unreasonable delay;
• favours one beneficiary over another without proper justification;
• enters contracts in their own name without limiting liability to estate assets; or
• incurs unnecessary legal costs through unreasonable conduct.

For example, if an executor distributes the entire estate and a valid debt is later identified, the executor may have to pay that debt personally if the distributed funds cannot be recovered.

Why timing matters

Timing is one of the most common areas of risk. In NSW, an eligible person can generally bring a family provision claim against an estate within 12 months of the date of death. Distributing the estate before the risk of claims and debts has been properly considered can leave an executor exposed. Getting advice on when it is safe to distribute is an important step in protecting yourself.

When does the executor’s role end?

The executor’s role ends when the estate has been fully administered, all liabilities have been addressed, and the remaining assets have been properly distributed to the beneficiaries.

Get advice on your responsibilities as an executor

Being an executor is a big responsibility, and executors should obtain legal advice about their responsibilities. Our experienced wills and estates team can guide you through each step of the administration, from applying for probate to distributing the estate, so you can carry out your role with confidence and protect what matters to the family.

Get in touch to discuss your situation with our experienced team.