When someone passes away, there’s more than just grief to manage. You also need to deal with their estate—the money, property and personal items they’ve left behind. If you’ve been named as the executor of a will, this guide is for you. It covers what probate is, how estate administration works, what you’re legally required to do and how to avoid common mistakes.
Most people don’t plan for this moment. That’s why it’s so important to understand how wills and estate planning work together in the bigger picture. If you’re navigating this process, or preparing for it, this guide will help you take the right steps and protect everyone involved.
What Is Probate and Why Does It Matter?
Probate is a legal step. It confirms a will is valid and lets the executor handle the estate. Without probate, the executor may not get access to bank accounts, property titles or other assets. Probate protects both the executor and the beneficiaries by making sure the court recognises the will and the person managing it.
In New South Wales and most other parts of Australia, probate is only needed if the estate has significant assets. Small estates may not need probate at all.
Here’s how it works:
- The executor applies to the Supreme Court for a grant of probate
- The court reviews the documents
- If everything checks out, it issues the grant
- The executor can then collect and distribute the assets
A few important things to know:
- You can’t start distributing the estate before getting probate
- Probate doesn’t give you ownership—it gives you responsibility
- If there’s no will, you’ll need to apply for letters of administration instead
Probate matters because it gives legal clarity. It protects the executor from personal liability and gives them the authority to deal with banks, the ATO and asset holders.
It also stops delays. Without probate, many institutions won’t release funds or transfer titles. That’s why this step is often the key to unlocking the rest of the estate administration.
For example, if someone passes away and leaves $800,000 in a bank account and a house in their name, the bank and Land Registry will both require probate before releasing the funds or transferring the property. If the executor skips this step, everything gets stuck.
This is where many families get confused, especially if they’re dealing with common will myths that confuse families. Believing probate isn’t needed can cause legal headaches later.
The Executor’s Legal Duties: More Than Just Paperwork
Being an executor sounds simple on paper, but it’s a legal role with real duties. You’re responsible for carrying out the will and managing the estate with care.
Your key duties include:
- Finding and securing all assets
- Notifying beneficiaries
- Paying debts and taxes
- Distributing the estate according to the will
- Keeping clear records of every step
You must act in the best interest of all beneficiaries. You can’t favour one over another. You also need to avoid personal gain from your position unless the will allows it.
Some estates are straightforward. Others involve business interests, unpaid taxes or unclear debts. In these cases, you may need help from a lawyer, accountant or financial adviser.
Here’s a real-life example:
In Melbourne, a woman died leaving behind a will naming her nephew as executor. He found out she had shares in multiple companies, unpaid council rates and a life insurance policy that wasn’t mentioned in the will. With legal support, he lodged a probate, paid off debts and correctly distributed the rest. It took nine months, multiple court documents and hours of admin—but he followed the law and avoided disputes.
Executors must also:
- File tax returns for the deceased and the estate
- Keep the beneficiaries updated
- Make decisions if the will is unclear
Mistakes can lead to legal action or claims against you. For example, if you miscalculate the assets and give too much to one person, you could be liable for the difference.
Being an executor means taking your time and asking questions. It’s not a role you can rush through. This becomes more important in cases involving estate planning for blended family dynamics, where misunderstandings can lead to serious conflict.
Estate Administration Timeline: What to Expect and When
Estate administration takes time. Some tasks must be done in a specific order. Rushing can cause mistakes while delaying can frustrate beneficiaries. Executors often underestimate how long each step takes, especially when dealing with unexpected complications or slow-moving institutions.
Here’s a typical timeline:
- First Month (After Death)
- Locate the will
- Organise the funeral
- Secure the property and valuables
- Notify banks and institutions
This is a crucial period where emotions run high. The executor should focus on practical steps like protecting the deceased’s home, changing the locks if needed and cancelling services like utilities or phone bills. They’ll also need to find the original will and confirm their appointment as executor.
- Month 2–3
- Apply for probate
- Identify all assets and debts
- Open an estate bank account
Once the funeral is over, the legal process begins. Applying for probate includes publishing a notice of intention, gathering death certificates and listing every asset. Executors may need to liaise with real estate agents, super funds, insurers and financial advisers to confirm the value of assets and liabilities.
- Month 4–6
- Receive the grant of probate
- Collect assets and transfer into the estate account
- Pay outstanding bills, debts and tax
This stage involves moving funds into a central account. The executor can then start paying off mortgages, loans or credit card balances. A good rule is to wait until all liabilities are settled before thinking about distribution.
- Month 6–12
- Prepare final tax returns
- Distribute assets
- Close the estate
Final steps include lodging tax returns and distributing inheritances. Sometimes beneficiaries push for early access, but this can backfire if the estate still owes money.
Sometimes delays happen. Reasons include:
- Missing documents
- Disputes among beneficiaries
- Debts that take time to resolve
- Court processing times
Each estate is unique. Some wrap up in six months. Others take over a year. For large estates, complex business holdings or family disputes, it can stretch even longer.
If minors or vulnerable people are involved, the process often includes special steps for protecting young or vulnerable beneficiaries. This might include setting up trusts or appointing a trustee to manage funds on their behalf.
Sticking to a clear timeline helps reduce stress for everyone. It also protects the executor from accusations of delay or mismanagement. Following a step-by-step process builds trust with beneficiaries and ensures the estate is handled properly from start to finish.
Handling Debts, Taxes and Financial Liabilities
Many people assume all debts vanish when someone dies. That’s not the case. The estate must settle all debts before anything is distributed.
Debts may include:
- Credit cards
- Home loans
- Car finance
- Personal loans
- Council rates or body corporate fees
- Tax debts
The executor must:
- Notify creditors of the death
- Confirm which debts are owed
- Pay debts from estate assets
- Keep evidence of all payments
If there isn’t enough money to pay all debts, the estate is insolvent. In that case, assets must be used to pay creditors in a legal order. Beneficiaries may get nothing.
The executor must also:
- Lodge the final tax return for the deceased
- Lodge a separate tax return for the estate (if needed)
- Register for a TFN for the estate (in some cases)
Failing to handle these steps correctly can result in ATO penalties or personal liability. That’s why it’s smart to get professional help early, especially with large or complicated estates.
Ignoring these duties can also cause family conflict. Some may think the executor is hiding assets or dragging their feet. That’s why transparency matters.
Taking action early helps with avoiding family disputes over inheritance, especially in estates where emotions are already running high.
Common Pitfalls Executors Should Watch Out For
Even with a valid will, estate administration can go wrong. The most common mistakes executors make include:
- Starting asset distribution before probate
- Failing to keep proper records
- Not communicating with beneficiaries
- Not checking for updated debts or superannuation policies
- Misunderstanding their role or legal limits
In some cases, executors face lawsuits or claims from unhappy family members. Others find themselves stuck in the middle of sibling disputes, especially when the will feels “unfair.”
Let’s take a practical example:
In a Sydney family, a father left his home to one son and cash to another. The home had doubled in value, so the cash gift felt unequal. The executor didn’t explain the reasoning or offer a plan to balance things. The result? A family court battle that dragged on for 18 months.
Proper communication, legal guidance and estate planning could have prevented that mess. It’s another example of how a properly structured will helped a family avoid bigger problems.
Avoiding these pitfalls starts with:
- Reading the will carefully
- Talking to a lawyer early
- Keeping everyone informed
- Keeping all receipts and emails
- Not making personal decisions about asset value
Remember, the executor’s job is to follow the will—not rewrite it.
Digital Assets, Online Accounts and Modern Estates
Modern estates now include more than just houses and bank accounts. Executors also deal with digital assets like:
- Email accounts
- Social media profiles
- Cloud storage
- Subscription services
- Cryptocurrency wallets
These can hold real value or personal memories. Ignoring them can lead to data loss or unauthorised access.
To manage digital assets:
- List all known accounts
- Contact providers to see if access is possible
- Check if the will includes instructions for digital assets
- Download or delete content where needed
- Cancel subscriptions or automatic payments
Some platforms, like Facebook and Google, allow legacy contacts. These settings should be part of a full estate plan.
Executors should treat digital assets like physical ones. That means documenting access, handling with care and protecting passwords.
With more people investing in crypto, handling these assets has become a critical step. Crypto is often locked behind private keys. If the key is lost, the asset is gone. No bank, no recovery.
This adds a whole new layer of risk and responsibility, making it even more important to plan ahead. It’s part of the evolving world of estate management.
Frequently Asked Questions
1) Do all estates need to go through probate?
No, not all estates require probate. Whether or not probate is needed depends on the value and type of assets involved. For example, if a person passes away and their assets are jointly owned with someone else—such as a home or a joint bank account—those assets will usually pass directly to the surviving owner. In this case, probate may not be necessary. The same goes for superannuation with a nominated beneficiary or insurance policies with a specific recipient. However, when assets are held in the deceased’s name only—especially valuable ones like property or large bank accounts—probate is generally required. Most financial institutions and government agencies require a grant of probate before releasing those funds. Every bank has its own threshold, which can range from $15,000 to $100,000. If you’re unsure, speak with the institution holding the asset. Even if the estate seems small, it’s always best to check before making assumptions. Going ahead without probate when it’s needed can delay the whole process and create complications later on.
2) What happens if there is no will?
If a person dies without a valid will, the estate is considered “intestate.” This means there’s no legal document outlining their wishes, and the law steps in to decide how the estate gets divided. In New South Wales and most Australian states, intestacy rules determine the order of distribution. Typically, this goes to a surviving spouse or de facto partner first, followed by children, then extended family members. If there are no close relatives, the estate may even pass to the state government. Without a will, someone—usually the next of kin—needs to apply for letters of administration. This person will be responsible for managing the estate, much like an executor would. However, the process can be slower and more complicated without the guidance of a clear will. Intestacy also opens the door to disputes, especially in blended families or where multiple partners or children are involved. Creating a valid, legally sound will is the best way to avoid these issues and protect the people who matter most.
3) Can an executor be held personally liable?
Yes, and many people don’t realise this. Being an executor isn’t just an honour—it’s a legal responsibility. If you don’t follow the rules, you can be held personally liable for mistakes. That means you could be taken to court, or even ordered to repay money out of your own pocket. For example, if you distribute assets before paying debts or taxes, and creditors later make a claim, you could be responsible for paying them. You could also be liable if you ignore a beneficiary’s legal entitlement, mismanage the estate or fail to keep records. Even something simple like missing a tax deadline could cause serious issues. To avoid this, it’s essential to follow the will, keep detailed records and get advice when needed. You’re allowed to hire professionals—lawyers, accountants or financial advisers—and the estate can cover these costs. Taking the time to understand your role reduces risk. Don’t rush decisions, and always stay transparent with the beneficiaries and the court.
4) How long does probate take in Australia?
The probate process in Australia can vary depending on several factors. On average, it takes between four to eight weeks for the Supreme Court to process a standard application after it’s lodged. But the full timeline for estate administration is often longer. From the time of death to final distribution, the entire process usually takes between six months and one year. Delays can happen for several reasons. If there are missing documents, unclear terms in the will, disputes between beneficiaries or complications with debts and taxes, probate can take much longer. The workload of the court system also affects how fast probate is granted. Some courts have backlogs, especially after public holidays or during high-volume periods. Executors can speed things up by preparing all required documents accurately and promptly. That includes getting death certificates, publishing legal notices, identifying all assets and liabilities and submitting a correct inventory of the estate. If everything is in order, things move faster. But every estate is different—simple ones go quickly, complex ones take time.
5) What if there’s a dispute among beneficiaries?
Disputes are one of the biggest risks in estate administration. They can arise for many reasons—unclear will terms, family tensions, perceived unfairness or even personal grudges. When beneficiaries argue, it can delay the whole process and increase legal costs. Executors must be especially careful not to take sides. If a conflict arises, the best first step is to pause any distribution of the estate. Seek legal advice straight away. Mediation is often used to resolve disputes without going to court. It gives everyone a chance to talk things through with an independent party. If no agreement is reached, the matter may end up in the Supreme Court. Executors who go ahead with distribution while a dispute is unresolved could be personally liable. That’s why transparency, communication and good record-keeping matter. Sometimes the executor themselves is part of the family dispute. In those cases, it might be best for a neutral party—like a lawyer or professional trustee—to take over. Disputes don’t always mean something went wrong, but they do need to be managed carefully.
Why Good Planning Makes All the Difference
Probate and estate administration can feel like a maze—but it doesn’t have to be. With good planning, clear communication and the right legal advice, the process can go smoothly.
A good will is the foundation. It names the right executor, outlines clear wishes and considers things like debts, taxes and blended families. Executors who take their role seriously protect not only the estate, but the people left behind.
As Australia moves further into the digital age, modern estates will keep evolving. Executors will need to manage crypto, online accounts and digital identities with the same care as houses and bank accounts.
Families are also changing. More blended families, second marriages and international connections mean estate plans must be more detailed and flexible.
That’s why working with professionals—lawyers who specialise in estate planning and probate—can save time, stress and legal problems later.
If you’re preparing to act as an executor or writing your own will, it’s never too early to get it right. Proper planning today can save your loved ones tomorrow.
Looking ahead starts with taking control now—visit Ignify Legal for help with estate planning, probate and protecting your family’s future.
Please call us today at (02) 9413 4708 or submit an online enquiry.
