Being an executor

Introduction

This guide has information about what happens if you are appointed executor in someone's will. Read more about wills.

An executor is named in a person's will, and can be either:

  • a person 
  • or a trustee organisation. 

When a person dies their belongings, property, money and debts is called their estate. 

An executor is responsible for carrying out that person’s instructions and making sure their money and belongings go to the people they have named in their will, also known as the beneficiaries.

Find out more about what an executor does.

If you don't want to be executor

If you don’t want to be an executor, you can decline. 

You must do this in writing by signing a document called a renunciation.

Another beneficiary of an estate can administer the estate in your place, or you can ask the Public Trustee to administer the estate for a fee if everyone agrees.

Read about will and estate management fees.

Difference between an executor and an administrator 

An executor takes control of a person’s estate when they have been named in their will.

An administrator takes control of a person’s estate when they have been appointed because the person didn’t have a will.

Find out more about taking control of a person's estate.


What an executor does

Being an executor or administrator can be demanding and complex.

You need a good understanding of the law, accounting and taxes. You may need to get professional advice which can add expenses to the estate.

Executor duties can include all of the following:

  • getting permission from the Supreme Court to deal with the estate, known as a grant of representation - read more about taking control of an estate
  • finding the people who will receive something from the estate, also known as beneficiaries, and keeping them informed of progress
  • making sure beneficiaries receive what is given to them
  • making sure valuables and property are locked, and any insurance policies are still being paid
  • finding out what debts are owed, including taxes.

For information about tax and superannuation relating to estates go to the Australian Taxation Office website.


Risks of being an executor

There are some risks if you are an executor of an estate. 

You can be held responsible if any of the following happen:

  • people named in the will lose money because you caused unnecessary delays
  • property is damaged or destroyed if it wasn’t properly looked after
  • you make a mistake when giving money and belongings to people named in the will
  • you don’t pay debts and taxes from the estate before giving money to people named in the will.

You may need to become a trustee if someone named in the will is not yet over 18 years old. Read more about trusts.

You may be responsible for making sure someone in the will receives money over a longer period of time.

This can require good money management over a number of years.


Taking control of the estate

By law, you first must go to the Public Trustee’s office to check if there is a will, even if you know they do not have one.

You will be asked to swear an oath that you have checked.

Getting permission from the court

To be able to legally take control of an estate, you need to get permission from the Supreme Court.

This is known as a grant of representation.

The court can give one of the following:

  • probate - when a will exists
  • letters of administration - when no will exists
  • letters of administration with will annexed - when the named executor declines.

When there is a will: grant of probate

You will need a grant of probate when either:

  • you have been named as the executor in the will
  • or more than one executor has been named in the will.

How to apply

You can apply for a grant of probate by either:

  • applying yourself - for more information, read about wills and probate on the Supreme Court website.
  • or asking a lawyer to apply on your behalf.

When no will exists: letters of administration

If there is no will and no executor appointed, you will need to apply to the Supreme Court for permission to be the administrator.

Under the law, the court can give permission to:

  • the husband or wife or de facto partner
  • one or more of the next of kin, including parents, children, or brothers and sisters
  • another person the court sees fit.

How to apply

You can apply for letters of administration by either:

  • applying yourself - for more information, read about wills and probate on the Supreme Court website.
  • or asking a lawyer to apply on your behalf.

Small estates of less than $20,000

When a person dies and leaves an estate that is less than $20,000 in value, whether there is a will or not, you may be able to take control of the estate yourself without asking the Supreme Court for a grant of representation. 

This can save time and money.

You can also take control of a small estate with a grant of representation.

Read more about grants of representation and taking control of an estate.

Example of a wife administering a small estate of her husband

The husband has a will and leaves his wife all of his estate. 

The estate consists of:

  • a bank account
  • some personal effects
  • a car.

The wife will need to do all of the following:

  • arrange the funeral and burial or cremation - any funds in the husband’s bank account can be used to pay for his funeral
  • apply for a death certificate, although this is usually done by the funeral company
  • tell government authorities such as Medicare, the Australian Tax Office and Centrelink
  • tell pension companies
  • pay any debts
  • arrange for the car to be transferred into her name
  • talk to the bank about closing his account
  • re-arrange insurance policies
  • tell the landlord or housing department about change in tenancy agreement if their property is rented
  • transfer any jointly owned property into her name by filling out a transfer form with the Land Titles Office.