Deceased Estate
Have you been appointed as an executor of a will? An executor is the person who is in charge of administering a deceased estate. In most cases, an executor will be a spouse or partner, an adult child, another family member or a trusted friend.
It’s a position that comes with a wide range of roles and responsibilities. Amongst other jobs, you are responsible for managing and protecting any assets, notifying institutions of the death, maintaining accurate records, paying bills, organising tax returns, and dealing with any claims against the estate. Then there’s the process of applying for a Grant of Probate, and distributing the estate.
At MV Law, our expert executor advice and wills and estate lawyers can give you detailed advice about your duties and responsibilities as an executor of a will and can help you perform your role, as well as protecting you from any liability.
If you have been appointed executor but don’t wish to fulfil the role, our team can also advise you on your rights and the process around renouncing your appointment.
We can also help with:
Get the process started now:
The MV Law difference
At MV Law, our experienced team is here to help you perform your role as an executor of a will, including:
- applications for ACT Supreme Court and NSW Supreme Court grants of Probate or Letters of Administration, if required.
- advice about invalid wills or when a will can’t be effective for the whole estate.
- advice about intestate estates where there is no will.
- advice to Executors about their role and duties.
- advice to Beneficiaries about their rights.
- collection and distribution of estate assets.
- working with accountants and financial advisers, if required.
If you’re the executor of a will, our experienced and specialised lawyers provide a comprehensive service that covers every aspect of estate law. Whether you’re navigating your role as executor of a Will, protecting assets from a dispute or wanting to renounce your appointment as executor, we have the knowledge and experience to guide you every step of the way.
We understand that managing deceased estates can be a difficult and stressful process. That’s why our supportive team works alongside you, ensuring you feel completely at ease from start to finish, whilst providing practical, plain-English advice and disclosing all legal costs up-front.
Deceased Estates FAQ
When a person dies, they leave behind assets (including bank accounts, real estate, shares, personal possessions, insurance policies etc) and perhaps liabilities (including mortgage and personal loans). These form their ‘estate’.
Where the deceased left a Will, it is usually the person appointed as Executor who is responsible for managing the estate. Where there is no Will, it is usually a close family member (eg. spouse, adult child) who will apply to the Court to become the Administrator of the estate.
The Executor’s job is to finalise the estate of the deceased person. This may include applying for a Grant of Probate, arranging for the assets of the deceased to be ‘realised’ (that is, sold or cashed out), paying off any debts using those assets and then distributing the net estate to beneficiaries in accordance with the Will. The Executor must also must ensure that the tax affairs of the deceased are finalised.
The Executor should get legal advice from a Wills and Estates lawyer to ensure they understand their role and their obligations and to get assistance in their administration of the estate. Good legal advice will minimise the risk of the Executor being held personally responsible for any claims on the estate. The legal fees are typically an expense that can be met by the estate.
It depends on each of the assets in the estate. Probate is always needed where the deceased held an interest in land in ACT and NSW (other than a joint tenancy where there is a surviving joint owner). Some banks require Probate where the balance is over $15,000, whereas other banks have a higher limit. Probate is usually needed where a Refundable Accommodation Deposit is held by a nursing home. The monetary limit for other assets (such as shares) will vary according to the type of asset in question.
Basically, there is no short answer to this question – it depends on the nature of the estate assets. The Grant of Probate is effectively a protection for the banks and land titles office and all the other institutions that an Executor might need to deal with in their administration of the estate. The Grant of Probate gives assurance to those banks and other institutions that the Will is indeed valid and that the Executor has the proper legal authority to deal with the assets of the deceased.
Where there is no Will, it may be necessary for someone to apply for a Grant of Letters of Administration. It is usually the spouse/partner of the deceased who is the applicant, or it may be their adult child(ren), or it may be another suitable person. The purpose of the application is to ask the Court to appoint the person (who would be known as the administrator) to finalise the estate of the deceased. The administrator completes the tasks of an Executor in realising assets and paying debts, and they then distribute the net estate to the deceased’s next of kin, according to the intestacy provisions in ACT or NSW legislation. For example, in the ACT, intestacy laws state that the estate is paid entirely to a spouse where the deceased did not have any children. If the deceased had a spouse and children, then the spouse takes the first $200,000 and then the balance is divided between the spouse and the children equally. And so on.
In general, there is no income tax paid by a beneficiary who inherits from a deceased person. In many cases, there is no stamp duty payable where real estate is inherited. But, depending on the nature of the asset and other factors, there may be duty or tax payable, including capital gains tax in some situations. It is always necessary for an executor to obtain proper tax advice about the deceased estate.
Where there are estate funds available, it is necessary for an Executor to pay all of the debts owed by the deceased at the time of death (including credit card, tax, utilities etc). It is also usual for the estate to pay for the funeral costs, legal fees and accounting costs associated with the estate. An Executor is not personally responsible for paying any of these debts.
There are no maximum time limits set for distribution of an estate – it often takes a year or so for the Executor to obtain Probate, realise assets and pay debts, so beneficiaries may have to wait some time for their inheritance to be paid. As a general rule of thumb, it is also prudent for an Executor to wait at least six months from the Grant of Probate before distributing anything to beneficiaries, in order to ensure that there are no unexpected claims made on the estate.
In general, an Executor is not paid to act. However, a person making their Will may decide to make a gift to their Executor to thank them for doing the job, recognising that the duties of an Executor can be time-consuming and onerous. It is also open to any Executor to apply to the Court for payment to themselves, in the form of commission.
Beneficiaries do not have any rights to force an Executor to sell (or not to sell) property. Such a decision is up to the Executor alone. However, an Executor might decide to consult with adult beneficiaries about the best way to pass on the estate to them, to discuss whether or not to sell or rent a property, or transfer it to one or more beneficiaries. But the decision of the Executor will be final. Of course, if a property is specifically bequeathed to a beneficiary in the Will then that is a different situation.
Once a beneficiary has received their inheritance, it is up to them how they deal with it. They should consult with their financial advisor about the best way to use the funds.
If you want to be empowered over the legacy you leave, talk to the MV Law team now.

"*" indicates required fields