The Role of an Executor of a Will: Rights, Responsibilities & Obligations

Being named as the executor of a will is both an honour and a significant legal responsibility. As the person entrusted to carry out the wishes of the deceased, you play a crucial role in the administration of their estate. At BJH Law, we guide executors through every step of the process, ensuring you understand your rights, meet your obligations, and avoid personal liability.

What is an Executor?

An executor is the person (or sometimes more than one person) appointed in a will to manage the deceased’s estate. This includes collecting assets, paying debts, and distributing the estate to beneficiaries according to the will.

Key Responsibilities of an Executor

1. Locating the Will and Arranging the Funeral
Your first duty is to locate the original will and ensure the deceased’s wishes regarding their funeral are respected. While funeral expenses are paid from the estate, you may need to make arrangements before estate funds are available.

2. Securing and Valuing Assets
You must identify, secure, and value all assets of the estate. This can include property, bank accounts, shares, vehicles, superannuation, and personal belongings. You are responsible for protecting these assets until they are distributed.

3. Applying for Probate
In most cases, you will need to apply to the Supreme Court of Queensland for a grant of probate. Probate is the court’s official recognition that the will is valid and that you are authorised to act as executor.

4. Paying Debts and Taxes
Before distributing any assets, you must pay all outstanding debts, including funeral expenses, loans, credit cards, and any taxes owed by the deceased or the estate. You may need to lodge final tax returns and seek advice on capital gains tax or superannuation issues.

5. Distributing the Estate
Once debts and taxes are paid, you distribute the remaining assets to the beneficiaries as set out in the will. This must be done fairly and in accordance with the law.

6. Keeping Records and Providing Accounts
You are required to keep accurate records of all transactions, including receipts, payments, and distributions. Beneficiaries are entitled to request an account of your administration.

7. Defending the Estate
If the will is contested or a claim is made against the estate, you are responsible for defending the estate and acting in its best interests. This may involve seeking legal advice and representing the estate in court.

Rights of an Executor

• Right to be Indemnified: You are entitled to be reimbursed for reasonable expenses incurred in administering the estate.
• Right to Seek Professional Advice: You can engage lawyers, accountants, or other professionals to assist you, with costs paid from the estate.
• Right to Executor’s Commission: In some cases, you may be entitled to claim a commission for your time and effort, especially if the administration is complex or time-consuming. This must be approved by the beneficiaries or the court.

Obligations and Duties

• Act Honestly and in Good Faith: You must always act in the best interests of the estate and the beneficiaries, avoiding conflicts of interest.
• Act Promptly: You are expected to administer the estate without unnecessary delay.
• Follow the Will and the Law: You must carry out the wishes of the deceased as set out in the will, subject to the requirements of Queensland law.
• Communicate with Beneficiaries: You should keep beneficiaries informed about the progress of the estate and respond to reasonable requests for information.

Risks and Personal Liability

Executors can be held personally liable for losses caused by negligence, delay, or failure to pay debts and taxes. Common risks include:

• Distributing assets before all debts and claims are settled
• Failing to keep proper records
• Not acting impartially between beneficiaries
• Ignoring or mishandling a will contest or family provision claim

How BJH Law Can Help Executors

At BJH Law, we have extensive experience advising and supporting executors across Queensland. We can:

• Guide you through every step of the estate administration process
• Prepare and lodge probate applications
• Advise on tax, superannuation, and asset issues
• Defend the estate against claims or disputes
• Help you avoid personal liability and ensure you meet all legal obligations

Frequently Asked Questions

Do I have to accept the role of executor?
No. You can renounce your appointment if you do not wish to act, but you should do so before taking any steps to administer the estate.

Can there be more than one executor?
Yes. Wills often appoint two or more executors to act jointly. If there is a dispute between executors, legal advice may be needed.

How long does the process take?
Simple estates can often be finalised within 6–12 months, but complex estates or those involving disputes may take longer.

What if I make a mistake?
If you act honestly and seek professional advice when needed, you are unlikely to be held personally liable. However, serious mistakes or misconduct can result in personal liability.