In short
Being named as an executor in a NSW Will carries significant legal and fiduciary responsibilities. An executor's core role is to secure and identify estate assets, apply for a Grant of Probate where required, pay verified estate debts and tax liabilities, maintain transparent accounts, and distribute the net estate strictly in accordance with the law.
Crucially, an executor does not own estate assets personally. If an executor distributes assets prematurely, sells property below market value, fails to pay tax liabilities, or mismanages business interests, they can face personal financial liability for the resulting losses.
What steps must an executor take immediately after a death?
The first few weeks of estate administration require urgent protective measures to preserve estate value and prevent unauthorized interference:
- Locate the original Will: Find the deceased's last valid original testamentary document. Check safe deposit boxes, personal filing cabinets, and the offices of the deceased's family solicitor;
- Obtain the Death Certificate: Secure official copies of the death certificate issued by the NSW Registry of Births Deaths & Marriages;
- Secure physical assets and real estate: Change locks on unattended residential or commercial premises, secure motor vehicles, collect jewellery and cash, and ensure building and contents insurance policies remain continuously active;
- Notify institutions: Inform banks, share registries, superannuation funds, Centrelink, and utility providers to freeze personal accounts and stop ongoing billing;
- Halt distributions: Do not distribute any cash, personal chattels, or estate property to family members or beneficiaries before probate is assessed and liabilities are calculated.
Do you need to apply for a Grant of Probate in NSW?
A Grant of Probate is a formal Supreme Court order certifying that the Will is legally valid and confirming the executor's authority to collect and transfer the deceased's assets.
While small estates with modest bank balances (typically under $20,000 to $50,000, depending on bank policy) can sometimes be released under an indemnity without a formal grant, probate is legally indispensable whenever the deceased owned real property in New South Wales or substantial shareholdings. For an overview of grant requirements and administration procedures, review our guide on probate or letters of administration in NSW.
How do you identify and collect estate assets?
An executor must separate true estate assets governed by the Will from non-estate assets that pass outside probate:
- Estate assets: Bank accounts held solely in the deceased's name, real property held as tenants in common, private company shares, vehicles, personal effects, and debts owed to the deceased.
- Jointly owned property: Real estate or bank accounts held as joint tenants do not form part of the estate. Under the legal doctrine of survivorship, ownership passes automatically to the surviving co-owner upon filing a Notice of Death with NSW Land Registry Services.
- Superannuation and life insurance: Superannuation death benefits are governed by the super fund trustee and trust deed. Unless the deceased made a valid, binding death benefit nomination directing payment to their "Legal Personal Representative" (the estate), super passes directly to eligible dependants outside the Will. Read our analysis on whether your Will controls superannuation.
- Family trust assets: Assets held inside discretionary family trusts are owned by the corporate trustee, not the deceased personally, and cannot be gifted in a Will.
Which debts, taxes and estate expenses take legal priority?
Executors must pay valid estate debts before distributing a single dollar to beneficiaries. Under NSW law, liabilities must be paid in the following statutory order of priority:
- Reasonable funeral, burial or cremation expenses, followed by testamentary expenses and legal costs incurred in obtaining probate;
- Outstanding tax liabilities owed to the Australian Taxation Office (ATO), including deceased date-of-death tax returns and trust estate returns;
- Secured debts, such as mortgages and registered PPSR charges over specific assets;
- Unsecured commercial debts, credit cards, supplier invoices, and personal loans.
If an executor distributes estate funds to beneficiaries and subsequent creditors or tax assessments emerge, the executor can be held personally liable to pay those debts from their own personal funds.
What records must you keep and what must you disclose to beneficiaries?
Executors have a strict fiduciary duty under the Probate and Administration Act 1898 (NSW) to maintain meticulous estate accounts. Beneficiaries have the legal right to inspect transparent financial administration:
- Maintain a dedicated deceased estate bank account for all estate receipts and payments;
- Keep complete records of bank statements, tax returns, professional valuations, and receipts for every expenditure;
- Prepare an itemised Estate Account summarizing gross assets, administration expenses, debts settled, and net distribution calculations;
- If an executor fails to account, beneficiaries can file an application in the Supreme Court under section 85 compelling the executor to pass their accounts.
When is it legally safe to distribute the estate?
To avoid personal liability for unexpected creditor claims or family provision disputes, executors in NSW must observe two critical statutory timetables:
- Notice of Intended Distribution: Under section 92 of the Succession Act 2006 (NSW), the executor must publish a formal Notice of Intended Distribution on the NSW Online Registry. The executor must wait at least 30 days after publication before distributing estate assets.
- Six-month safe distribution window: Section 92 protects executors from personal liability for distribution if they distribute no earlier than six months after the deceased's death, provided they had no notice of any eligible claims.
- 12-month family provision limitation: Under section 58, eligible persons (including spouses, children, former spouses, and dependants) have 12 months from the date of death to commence a family provision claim. If the executor distributes before 12 months with knowledge of potential disputes, they face personal liability. Review our guide on contesting a Will and section 57 eligible persons.
When can an executor become personally liable?
Personal financial exposure arises when an executor commits a devastavit (wasting of estate assets) or breaches their fiduciary duties. Common risk triggers include:
- Distributing estate funds to beneficiaries before paying outstanding tax or creditor debts;
- Selling estate real estate or business shares significantly below independent market valuation;
- Failing to insure estate buildings, leading to unrecoverable damage or fire loss;
- Distributing assets when on notice of an impending family provision claim;
- Paying legacies to the wrong individuals or misinterpreting the testamentary clauses of the Will;
- Using estate funds for personal benefit or commingling estate funds with personal finances.
What if the estate includes an operating business?
Administering an estate that owns an active private company or family partnership creates urgent commercial complexities. The executor must ensure business continuity, preserve goodwill, and manage trading liabilities:
- If the deceased was a sole director and sole shareholder of a proprietary company, section 201F of the Corporations Act 2001 (Cth) allows the executor to appoint a replacement director to maintain company trading;
- Sole trader businesses expose the executor to personal liability for post-death trading contracts unless the Will explicitly authorizes business continuation and grants a full indemnity out of estate assets;
- Review partnership agreements and shareholders agreements for pre-agreed buy-sell options and valuation terms.
For detailed business succession guidance, review our articles on what happens when a business owner dies and estate planning for business owners.
What documents should you gather before meeting a probate solicitor?
To streamline the probate application and minimize legal costs, assemble the following records:
- Original Will and any formal codicils;
- Original Death Certificate;
- Comprehensive inventory of assets (real property titles, bank accounts, share certificates, superannuation statements, vehicle registrations);
- Summary of all known liabilities (mortgages, tax debts, credit cards, council rates, utility bills);
- Contact details, tax file numbers, and residential addresses of all named beneficiaries.
Our wills and estates team provides compassionate, authoritative guidance across our probate and estate administration services, wills and estate planning, and family provision defence.
Have you been appointed as an executor in New South Wales?
Biz Lawyers & Advisory assists executors across Sydney and NSW with grant applications, asset collection, creditor notices, tax clearance, and safe estate distributions.
Contact Biz Lawyers & Advisory or call 1800 893 836 for experienced probate and estate administration guidance.
This article provides general information only. It is not formal legal or taxation advice. Estate administration involves complex fiduciary duties and statutory timeframes that require tailored professional legal advice.
Primary sources
Law and court guidance checked 3 September 2026.
