Understanding Executors & Their Duties in Australia | Complete Guide

Q: How much does an executor get paid in Australia?

In Australia, executors are generally entitled to be reimbursed for reasonable out-of-pocket expenses. Professional executors (solicitors, accountants, trustee companies) typically charge fees of 1-5% of the estate value plus hourly rates. Family member executors often don't charge, but can claim commission with court approval if the Will doesn't specify payment.

Q: Can an executor refuse to act?

Yes, an executor can refuse to act (called 'renouncing'). They should do this formally before taking any steps to administer the estate. Once an executor starts acting (called 'intermeddling'), they generally cannot renounce without court permission. This is why the testator should always name substitute executors.

Q: How many executors should I appoint?

Most people appoint one or two executors. Having two can provide checks and balances, and means one can continue if the other dies or becomes incapacitated. However, more than two can slow down administration as all must agree on decisions. Always appoint at least one substitute executor in case your primary choices cannot act.

1. What is an Executor?

An executor (also called a "legal personal representative") is the person you appoint in your Will to manage and distribute your estate after you pass away. They are legally responsible for ensuring your final wishes are carried out.

Key Point

Your executor has a fiduciary duty to act honestly, in good faith, and in the best interests of the beneficiaries. They can be held personally liable for breaches of this duty.

The executor's role begins at your death and continues until the estate is fully administered, which can take anywhere from a few months to several years depending on complexity.

Executor vs Administrator

Executor: Appointed by you in your Will
Administrator: Appointed by the court if you die without a Will (intestate) or if no executor is willing/able to act

Both have similar duties, but executors derive their authority from the Will itself, while administrators derive theirs from the court.

2. Executor Duties & Responsibilities

Being an executor is a significant responsibility. Here's a comprehensive breakdown of what's involved:

1 Immediate Steps After Death

• Locate and secure the original Will
• Register the death and obtain death certificates
• Arrange the funeral (if not pre-arranged)
• Secure the deceased's property and assets
• Notify banks, insurers, and relevant institutions

2 Applying for Probate

• Determine if probate is required (depends on assets held)
• Prepare and lodge the probate application with the Supreme Court
• Publish a notice to creditors
• Obtain the Grant of Probate

Note: Not all estates require probate. Small estates or assets held jointly may not need it.

3 Identifying and Valuing Assets

• Create a comprehensive inventory of all assets
• Obtain valuations (property, shares, businesses, collectibles)
• Collect money owed to the deceased
• Identify and secure digital assets

4 Paying Debts and Liabilities

• Identify all debts (mortgages, loans, credit cards)
• Pay funeral expenses
• Lodge final tax returns and pay any tax owing
• Settle legitimate creditor claims
• Pay any Capital Gains Tax on asset disposals

5 Distributing the Estate

• Distribute specific gifts as directed in the Will
• Transfer property titles to beneficiaries
• Distribute the residuary estate
• Establish and manage any testamentary trusts
• Prepare final accounts for beneficiaries

Time Commitment

Administering an estate typically takes 6-12 months for straightforward estates. Complex estates with property sales, business interests, or disputes can take 2-3 years or longer.

3. How to Choose an Executor

Choosing the right executor is one of the most important decisions when making your Will. Consider these factors:

Essential Qualities

Trustworthy

They'll have full access to your financial affairs

Organised

Estate administration requires attention to detail

Available

They need time to devote to the role

Impartial

Ability to manage family dynamics fairly

Financially Literate

Comfortable dealing with banks, tax, legal matters

Younger Than You

Likely to outlive you and be able to act

Common Executor Choices

Spouse or Partner: Often the natural choice, especially if they're the primary beneficiary. They understand your wishes and have a vested interest.
Adult Child: A responsible adult child can be excellent, but consider family dynamics if you have multiple children.
Sibling: A trusted brother or sister, especially if you don't have a spouse or adult children.
Close Friend: Sometimes a friend is more appropriate than family, especially in complicated family situations.
Professional: Solicitors, accountants, or trustee companies for complex estates or when no suitable personal choice exists.

Pro Tip

Always ask the person if they're willing to be your executor before naming them in your Will. It's a significant responsibility and they should understand what's involved.

4. Professional vs Family Executors

Family Member Executor

Advantages:

✓ No or minimal fees
✓ Knows your wishes and values
✓ Personal connection to beneficiaries
✓ More flexible approach

Disadvantages:

✗ May lack legal/financial expertise
✗ Emotional burden during grief
✗ Potential for family conflict
✗ Time-consuming for them

Professional Executor

Advantages:

✓ Expert knowledge of law and process
✓ Impartial and objective
✓ Continuity (companies don't die)
✓ Resources to handle complexity

Disadvantages:

✗ Fees reduce the estate (1-5%+)
✗ Less personal approach
✗ May not know family dynamics
✗ Can be slower/more bureaucratic

When to Consider a Professional

Complex estates with business interests, trusts, or international assets
Potential for family disputes or Will challenges
No suitable family member or friend available
Beneficiaries who are minors requiring long-term trust management
You want to remove the burden from your family

5. Appointing Multiple Executors

You can appoint more than one executor to act together. This can be beneficial but also has implications.

Joint Executors

When you appoint two or more executors, they typically must act unanimously unless your Will specifies otherwise. This means all executors must agree on every decision.

Benefits

• Provides checks and balances
• Shared workload
• Backup if one can't continue
• Different skills complement each other

Risks

• Disagreements can cause delays
• More signatures required
• Scheduling difficulties
• Potential for deadlock

Recommendations

One or Two Executors: Ideal for most estates
Maximum Three: More than this becomes unwieldy
Always Name Substitutes: In case primary executors can't act
Consider Combinations: e.g., family member + professional for balance

6. Executor Fees & Compensation

Executors are entitled to be compensated for their work, though family executors often waive fees.

Types of Compensation

Reimbursement of Expenses

All executors can claim reasonable out-of-pocket expenses including postage, travel, valuations, legal fees, and court filing fees.

Commission (Family/Friend Executors)

Non-professional executors may apply to the court for "commission" – typically up to 5% of capital and income. The Will can specify payment or explicitly prohibit it.

Professional Fees

Trustee companies and solicitors charge fees according to their published scales. These typically include:

• Capital commission: 1-5% of estate value
• Income commission: 2-6% of income collected
• Hourly rates: $200-$500+ per hour
• Additional fees for complex matters

Example

For an estate worth $1,000,000, a trustee company might charge $30,000-$50,000 in fees. A family executor could potentially claim $20,000-$30,000 in commission (if approved by the court), but most choose to waive this.

7. When Executors Refuse or Renounce

Being named as an executor doesn't obligate someone to act. They have options:

Renunciation

An executor can formally renounce their role by filing a document with the Probate Registry. This must be done before they take any steps to administer the estate.

Intermeddling

Once an executor starts dealing with estate assets (called "intermeddling"), they generally cannot renounce without court permission. Even simple acts like arranging the funeral or securing property may constitute intermeddling.

Reserving

If there are multiple executors, one can "reserve" their right to act while allowing others to proceed. They can then join later if needed.

What Happens If No Executor Acts?

If all named executors renounce or are unable to act, the court will appoint an administrator. Priority is typically given to:

Residuary beneficiaries
Other beneficiaries
The Public Trustee (as last resort)

8. Frequently Asked Questions

What does an executor do in Australia?

An executor is legally responsible for administering a deceased person's estate. Their duties include applying for probate, locating and valuing assets, paying debts and taxes, distributing assets to beneficiaries according to the Will, and managing any trusts established by the Will.

Can an executor be a beneficiary of the Will?

Yes, an executor can also be a beneficiary of the Will in Australia. In fact, it's very common for a spouse or adult child to be both executor and primary beneficiary. However, they must still act impartially and in accordance with their fiduciary duties.

How much does an executor get paid in Australia?

Executors are entitled to reimbursement for reasonable out-of-pocket expenses. Professional executors typically charge 1-5% of estate value plus hourly rates. Family member executors often don't charge but can claim commission with court approval if the Will doesn't specify payment.

Can an executor refuse to act?

Yes, an executor can refuse to act by formally renouncing. This should be done before taking any steps to administer the estate. Once an executor starts acting (intermeddling), they generally cannot renounce without court permission.

How many executors should I appoint?

Most people appoint one or two executors. Having two provides checks and balances and backup if one can't act. More than two can slow down administration. Always appoint at least one substitute executor in case your primary choices cannot act.

Understanding Executors & Their Duties