The Role of an Executor: What You Are Really Signing Up For

Being asked to serve as the executor of someone’s estate is, in most cases, an honour. It means the person who has died trusted you above all others to carry out their final wishes with care, diligence, and integrity. It is also, one must be candid, a substantial amount of work — and it comes with genuine legal obligations that many people do not fully appreciate until they are in the middle of the process.

This article explains what an executor does, the legal duties involved, what can go wrong, and how professional guidance can make the difference between a well-administered estate and a prolonged family dispute.

Who Is an Executor?

An executor is the person appointed in a Will to administer a deceased person’s estate. They are responsible for collecting the assets of the estate, paying debts and taxes, and distributing what remains to the beneficiaries in accordance with the Will.

Under the Succession Act 2023 (SA), the executor derives their authority from the Will itself, but that authority is typically formalised through a grant of Probate issued by the Supreme Court of South Australia. Probate confirms the validity of the Will and formally recognises the executor’s authority to deal with the estate’s assets.

If the deceased died without a Will (intestate), or without naming an executor, the Court may appoint an administrator instead. An administrator performs broadly the same functions as an executor but their authority derives from a grant of Letters of Administration rather than from a Will.

The Executor’s Core Duties

The duties of an executor are broad and must be carried out personally unless the executor has obtained professional assistance or the Will specifically authorises delegation. The key duties include:

• Locating and securing the original Will and any codicils;
• Registering the death and obtaining multiple certified copies of the Death Certificate;
• Identifying and securing all assets of the estate, including real property, bank accounts, investments, superannuation (which may or may not form part of the estate — see below), motor vehicles, jewellery, and business interests;
• Notifying banks, government agencies, and other institutions of the death;
• Applying for a grant of Probate from the Supreme Court of South Australia, where required;
• Advertising for creditors and paying valid debts of the estate, including funeral expenses, outstanding mortgages, personal loans, credit cards, and taxation liabilities;
• Preparing and lodging the deceased’s final income tax return, and addressing any estate tax obligations;
• Distributing the estate to beneficiaries in accordance with the Will;
• Keeping accurate records of all transactions throughout the administration and providing accounts to beneficiaries upon request.

The administration of even a modest estate can take six months to a year, or considerably longer where there are disputes, complex assets, or family provision claims. Executors should plan for this reality from the outset.

The Fiduciary Nature of the Role

An executor is a fiduciary — a person who holds a position of trust and is legally required to act in the interests of the beneficiaries rather than in their own interests. This is not merely an ethical obligation; it is enforceable at law. An executor who misappropriates estate assets, favours some beneficiaries over others without authority to do so, or fails to administer the estate in a timely and competent manner may be held personally liable for the resulting loss.

Common examples of executor misconduct that give rise to legal liability include:

• Failing to collect and protect estate assets promptly, resulting in loss or deterioration;
• Paying debts in the wrong order of priority under the applicable insolvency rules;
• Distributing the estate before the time has elapsed for family provision claims, leaving the executor personally exposed to any shortfall;
• Investing estate funds imprudently during the administration period;
• Failing to account to beneficiaries or to provide estate accounts;
• Acting in a conflict of interest without obtaining the informed consent of all beneficiaries.

Key Point: An executor who discovers that the estate is insolvent (meaning debts exceed assets) must seek immediate legal advice. The rules governing the order in which debts must be paid in an insolvent estate are technical and unforgiving. Paying the wrong creditors first can expose the executor to personal liability.

Superannuation and the Estate

One of the most common misunderstandings among executors — and indeed among testators — relates to superannuation. Superannuation death benefits do not automatically form part of the deceased estate. They are governed by the trust deed of the superannuation fund and by the superannuation legislation, not by the Will.

The trustee of the superannuation fund has discretion as to whom to pay death benefits, subject to any binding death benefit nomination the member may have made. Only if the trustee exercises their discretion to pay benefits to the estate — or if a valid binding nomination directing payment to the legal personal representative is in place — do superannuation proceeds come under the executor’s control.

Executors should identify the deceased’s superannuation accounts early in the administration process and promptly notify the relevant fund trustee of the death. The superannuation benefits will then be dealt with separately from the estate assets proper.

Family Provision Claims

Under the Succession Act 2023 (SA), certain eligible persons — including spouses, domestic partners, children, and in some circumstances former spouses and stepchildren — may apply to the Court for a family provision order if they believe they have not been adequately provided for by the estate.

An executor must be alert to the risk of family provision claims and must not distribute the estate prematurely. The time limit for bringing a family provision claim in South Australia is 12 months from the date of the grant of Probate or Letters of Administration. As a general rule, executors are well advised not to complete the final distribution of the estate until this period has elapsed, unless all eligible parties have provided their written consent.

Distributing an estate prematurely in the face of a known or reasonably anticipated family provision claim is one of the most serious errors an executor can make. Personal liability can result where the estate is then unable to satisfy a successful claim.

When to Seek Professional Assistance

Many executors are private individuals — family members or close friends of the deceased — who have no legal or financial training. The law recognises this and permits executors to engage solicitors and accountants to assist with the administration, with the cost of that assistance generally paid from the estate.

Professional assistance is particularly advisable where:

• The estate includes real property, business interests, or complex investment portfolios;
• There are multiple beneficiaries, or any beneficiary is a minor, a person under a legal disability, or located overseas;
• The Will is ambiguous or contested;
• There is a risk of family provision claims;
• The estate appears to be insolvent or of uncertain solvency;
• There are international assets or cross-border complications;
• The executor is uncertain about any aspect of their duties.

Engaging a probate solicitor at the outset costs less than attempting to correct mistakes after they have been made — and provides the executor with a measure of protection against personal liability.

Can an Executor Renounce?

An executor who is unwilling or unable to serve may renounce the role, provided they have not already intermeddled in the estate (that is, taken steps to act as executor). Renunciation must be done formally and in writing, and typically requires filing the appropriate documents with the Supreme Court.

An executor who has already begun to act but later wishes to withdraw may apply to the Court to be removed, but this is a more complex process and will not always succeed. The time to consider whether you are willing to act is before you begin, not after.

Conclusion

Serving as an executor is one of the most significant acts of friendship or family loyalty a person can perform. It is also a legal responsibility that demands care, patience, and — in most cases — professional support. Understanding what you are undertaking before you agree to serve is far preferable to discovering the full scope of the role at the worst possible moment.

If you have been named as an executor and would like guidance on what lies ahead, or if you are making a Will and wish to discuss the suitability of your proposed executor, the team at Genders and Partners has decades of experience in estate administration and is ready to assist.

Want to Find Out More?

If you would like further advice about executor duties, estate administration, or probate in South Australia, our experienced solicitors are here to help.

When it comes to Wills, Probate, Deceased Estates, asset protection and estate planning in Australia, you can trust the oldest law firm in South Australia – Genders & Partners – to guide you through the tough decisions you must make for your family’s future care and welfare.

If you have any questions or would like further information, or a quick phone call to discuss, book a timeslot for a free 15-minute phone consultation.

We can help you to protect yourself and your family. We look forward to being of service.

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DISCLAIMER: This article is intended as general information only and does not constitute legal advice. The law relating to executors and estate administration is complex and individual circumstances differ. You should obtain specific legal advice from a qualified practitioner before taking or refraining from any action. Genders and Partners accepts no liability for reliance on this article without such advice.

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Rod Genders is a senior Australian lawyer specialising in trusts, Wills and estate planning, accident compensation, and probate and deceased estate administration in Adelaide and all over South Australia. His boutique specialist law firm, which was founded on 1848, is one of the oldest and most respected in Australia. Rod is also a prolific author and speaker.  Some of his articles and books on Wills, Probate, Trusts, Estate Planning, Asset Protection and Retirement Planning may be found at www.genders.com.au.

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