Updated 28 October 2026
CM Law's Ultimate 50 List - Probate Problem #19: What is an Executor's Role in Probate?
CM Lawyers wills and estates services
An executor is responsible for administering an estate: identifying and protecting assets, dealing with liabilities, keeping accounts and distributing the balance according to the will and the law. Probate is the Court’s recognition of the will and the executor’s authority; obtaining the grant is one stage of administration, not the completion of the role.
For NSW executors, the practical challenge is knowing what can be done immediately, what requires a grant, and when distribution is safe. Taking advice early can prevent decisions that expose the estate, or the executor personally, to avoidable loss.
Christine on the solemn duty of a personal appointment
I also act as an executor in my personal capacity. I regard accepting that appointment as a solemn duty. The will-maker has placed trust in someone who must act when they can no longer explain their intentions or protect their own interests. That trust deserves careful decisions, accurate records and respect for the people affected.
Being personally appointed means accepting the responsibilities attached to the office. It does not make estate property my own or permit decisions based on personal preferences. Professional assistance can support the work, but the executor remains accountable. A personal relationship with the deceased can make the task emotionally demanding. The executor still needs to follow the will and obtain advice where a family request conflicts with their duties, rather than trying to satisfy everyone informally.
Where an executor is also a solicitor, the appointment and any legal work must be distinguished. Reimbursement of expenses, professional fees and executor’s commission are separate matters requiring an appropriate basis. The Law Society’s guidance addresses disclosure to affected beneficiaries and authorisation of commission.
Understanding when probate is needed
A grant is commonly required where the deceased owned land solely or as a tenant in common, or an institution requires probate before releasing assets. However, Legal Aid NSW explains that some small estates can be dealt with without a grant. Property held as joint tenants generally passes to the survivor. Superannuation must be checked with the fund rather than assumed to form part of the estate.
Do not interpret the need for probate as a reason to leave property unprotected. Locate the original will and any codicils, arrange necessary care of assets and obtain advice about authority before making commitments. Banks and other asset holders have their own requirements; an executor should not assume unrestricted access to accounts.
Preparing the NSW probate application
Most uncontested applications are now filed through the NSW Online Registry process. The notice of intended application must be published online at least 14 days before filing the summons. It is not a newspaper notice, and the 14 days are not a promise that the grant will issue immediately afterwards.
Prepare reliable information about the deceased, the executors and the assets and liabilities. The application ordinarily involves the original will, death certificate, inventory and supporting affidavit material. Follow the Court’s current filing directions, including delivery of original documents. Missing wills, alterations, inconsistent names or an executor unable to act may require additional evidence. The Court’s probate guidance explains these complications.
Protecting and valuing estate assets
Create an inventory and preserve the records used to establish ownership and value. Check title searches, bank balances, investments and liabilities. A balance at death and a later sale price answer different questions; retain both where relevant. Obtain suitable valuation advice before significant sales or decisions affecting different beneficiaries.
Check insurance, security and necessary maintenance of property. Ask the insurer about vacancy conditions rather than assuming an existing policy provides unchanged cover. Keep receipts for reasonable estate expenses. Record personal items before they are removed, and arrange immediate care for pets. Legal Aid NSW’s asset guidance provides a starting point for these enquiries.
When deciding whether to retain or sell an asset, record the advice obtained and the reasons for the decision. Discuss significant proposals with any co-executor. Keep correspondence together so that later questions can be answered from documents rather than recollection.
Digital holdings also need attention. Identify online businesses, cryptocurrency and valuable digital records, but check lawful access and platform requirements. Possession of a password does not settle ownership. Obtain advice where business partners, joint owners or other people may have competing rights.
Paying debts and checking tax obligations
Establish the estate’s debts, funeral expenses and administration costs before promising an inheritance. Payments require the correct priority. If liabilities may exceed available assets, obtain advice before paying creditors or distributing anything: an insolvent estate needs a different approach. Appointment alone does not make an executor the guarantor of every debt, but their own dealings or breaches can create personal exposure.
Australia has no inheritance or estate tax, although income tax and capital gains tax may arise. Check whether a final return for the deceased is required and whether the estate needs separate trust returns for the period after death. Neither return is automatically required in every estate.
Review outstanding lodgments and retain sufficient funds for tax. Distributing assets despite notice of an ATO claim can expose an executor to personal liability. Obtain tax advice on finalising outstanding obligations and the evidence needed before distribution.
Maintain a clear account of money received, expenses paid, assets sold and distributions made. Keep estate money separate from personal funds. The Supreme Court confirms that executors must keep records and report to beneficiaries, although most estates do not require accounts to be formally passed by the Court. Explain outstanding work and delays, and give realistic updates.
Before distributing, check debts, tax, any trusts in the will and actual or potential claims. Legal Aid NSW advises against distributing within six months of death and explains the protective purpose of a notice of intended distribution giving creditors 30 days. These measures are not blanket permission to ignore known claims or unresolved liabilities.
Prepare a distribution statement, confirm each entitlement and obtain receipts. An interim payment may sometimes be appropriate, but advice is needed about reserves and risk. Do not promise a fixed completion date simply because probate has been granted.
A NSW case showing the consequences of inaction
In O’Neill v O’Neill [2015] NSWSC 644, two siblings had obtained probate of their mother’s will. Almost 12 years later, the estate’s principal property at Rouse Hill remained unsold. One executor had stopped engaging with his co-executor and the other beneficiaries.
The will gave him a decisive role concerning the property, but required family discussion. The Court found that his failure to act had prevented proper administration. It revoked the grant, appointed the three plaintiffs as administrators with the will annexed and appointed professional trustees to sell the property.
The plaintiffs’ indemnity costs were payable from the estate and deducted from the defendant’s entitlement. Those were case-specific orders. The decision demonstrates that an executor’s discretion carries duties of engagement and action; it does not justify indefinite inaction.
Accepting the role and knowing when to seek help
Before accepting an appointment, consider your time, health, financial understanding and ability to work with any co-executor. If you cannot act, get advice promptly. Renunciation ordinarily occurs before a grant, subject to whether you have already dealt with the estate. After probate, stepping down requires a different process.
Obtain advice if the will is unclear, family conflict prevents progress or a proposed transaction creates a personal conflict. Beneficiaries may seek accounts or court intervention where administration fails; our article on challenging an executor explains those options.
Speak with Christine about probate
Whether you are choosing an executor or administering an estate, contact Christine Manolakos and CM Lawyers for advice on the appointment and the work required. Our estate administration service can assist with the practical steps. Have a lawyer check the will, circumstances and proposed course before acting.
General information about NSW probate and estate administration only. Have a lawyer check the facts, applicable law and proposed steps before acting. Obtain tax advice where required.
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