Deceased Estates and provision of Executor Services

4 June 2025 in Wills and Estates Law | 7 min read | skip to FAQs

This article discusses deceased estates and the provision of executor services, including the right of the executor to renounce. Estate administration encompasses the processes and duties that are fulfilled in relation to a deceased person’s estate. Estate administration is typically carried out by an executor.

The office of executor represents both an honour and a significant legal undertaking. Entrusted with administering a deceased estate, the position of executor attracts various legal and fiduciary responsibilities. The role of an executor includes funeral arrangement, asset identification and preservation, debt settlement, and distribution of the residuary estate to the beneficiary or beneficiaries in accordance with the will.

Core Responsibilities of Executors

An executor is appointed for the primary purpose of executing the ‘mind, will and intention of their testator’, that is, to administer, manage, and distribute the deceased estate in accordance with the deceased’s will.

1. Managing the deceased’s assets, including identifying, securing, and preserving them;
2. Collecting and settling the testator’s debts;
3. Organise and payment of funeral and testamentary expenses; and
4. Distributing legacies to beneficiaries as stipulated in the will.

Duty to Apply for Probate

A key obligation of an executor is obtaining a grant of probate. Probate refers to the process of process of proving the legal validity of the will. A grant of probate legally validates the will, establishes the executor’s legal title to the deceased’s property and confers authority to administer the estate. In fulfilling this duty, executors must  ‘propound’ all testamentary documents in their possession, unless valid grounds exist to challenge authenticity. Executors must also verify that the will under which they were appointed is the most recent and valid version. Any such doubts should be resolved by applying to the appropriate court for directions.

While probate is not always strictly required, particularly for small estates or jointly owned assets, its absence may expose the executor to significant risks. Section 81B(a) of the Probate and Administration Act 1898 (NSW) (“Act”) expressly prohibits the final disposition of estate assets without court disclosure, reinforcing probate’s role as a safeguard against competing claims and executorial liability.

Duty to Manage the Estate’s Assets

Once appointed, the executor assumes control over the deceased’s assets. Executors are responsible for identifying the assets of the deceased, including real property, vehicles, financial holdings, and entitlements such as superannuation and insurance proceeds. Once these assets are identified, it is the responsibility of the executor to preserve these assets.

Courts have consistently held executors to a high standard. It is expected that executors must take all reasonable steps to prevent asset depreciation, even if doing so requires interim measures. For example, failure to lease a vacant property pending sale may be deemed a breach of duty.

Duty to Settle the Testator’s Debt

Before beneficiaries receive their entitlements, executors must discharge the estate’s outstanding debts and liabilities in a prescribed order, being: funeral and testamentary expenses; administration costs, tax liabilities; and finally, unsecured debts, regardless of whether these obligations were incurred during or after the life of the testator. It is assumed that personal property should serve as the primary source for settling the deceased’s debts. However, this does not apply if the person explicitly directed that specific assets be used to pay particular debts.

Duty to Distribute the Estate

The executor’s ultimate duty is to uphold the will and distribute the assets of the estate in accordance with the deceased’s will. Evolving family structures, such as blended families and non-marital partnerships, require executors take reasonable steps to identify all entitled persons and valid beneficiaries to the will. As part of their administrative responsibilities, executors must also notify beneficiaries.

Duty to Arrange Funeral and Dispose of the Body

Beyond their financial responsibilities, the executor assumes the duty to make funeral arrangements and handle the disposal of the deceased’s body. In NSW, the human body does not constitute property, meaning instructions regarding its disposal lack legal enforceability. However, executors usually choose to follow the deceased’s wishes regarding disposal of the body.

Discharge of Duties

Following the successful completion of the duties above, the executor then must formally discharge themselves from their role. The discharge provides important legal protection for the executor and finality to the estate administration process.

The Right of the Executor to Renounce

The executor’s role carries substantial duties and responsibilities, with the potential for personal liability for any breaches of executors’ duties. Executors also have the potential to be involved in litigation such as family provision claims on behalf of the estate. It is not a position to be accepted lightly. Recognising the potential burden, the Probate and Administration Act 1898 (NSW) provides executors with the right to renounce their role.

Under section 69 of the Act, renunciation of an executor’s role may occur in three forms:

1. Formal written renunciation,
2. Death of the executor before fulfilling their duties, or
3. Inactivity, resulting in the executor’s failure to perform their obligations.

In all three cases, section 69 stipulates that “the right of such person in respect of the executorship shall wholly cease“, and the estate is treated as if that individual had never been appointed as executor.

Renunciation of Probate

While renunciation generally does not require adherence to a specific legal formality, legal persons (such as trust corporations) should preferably renounce their executorship under seal, accompanied by a declaration confirming that they have not engaged in any ‘intermeddling’ with the estate. For corporate executors, the company seal suffices as a valid signature.

A written renunciation is considered desirable, as it facilitates the process for another individual applying for a grant of probate under Rule 17 of Part 78 of the Supreme Court Rules 1970 (NSW). Such documentation serves as proof that the named executor has formally renounced their role—a process also known as renunciation of probate.

Once a grant of probate has been made, the executor cannot renounce probate and must not delegate their executorial duties. An appointed executor or administrator may however, by deed, appoint the NSW Trustee and Guardian or a Trustee company to be executor pursuant to s75A of the Probate and Administration Act 1898 (NSW). The deed must be filed with the Supreme Court.

Death of the Executor

If a sole or surviving executor dies before completing estate administration, their own executor (referred to as an ‘executor by representation’) may assume the role. This chain of representation may continue indefinitely but can be disrupted in cases of intestacy, failure to appoint an executor, or if an executor dies before obtaining probate.

Inactivity of the Executor

Section 69 of the Act further establishes that renunciation occurs when an executor waives or abandons their right to apply for probate. If an executor fails to act, their entitlement to the role ceases entirely. A person who is nominated can simply decline the offer by completing a renunciation of probate form and filing this with the Supreme Court.

It is important to note that once significant administrative action, is undertaken the law deems that the person has accepted the role of executor. These administrative actions are referred to as intermeddling in the estate. The executor can renounce their position through a formal application to the court.

How BSM Sydney Lawyers can assist Executors of a Deceased Estate

1. Explaining your rights and responsibilities as an executor
2. Ensuring that the will is the most recent and valid version
3. Attending to funeral arrangements and disposal of the body
4. Identifying, securing and preserving all of the deceased’s assets, including taking reasonable steps to prevent asset depreciation
5. Preparation of necessary documents and explanation of the steps required to obtain probate
6. Identification and discharge of debts and tax liabilities in the prescribed order
7. Accurate distribution of the assets of the estate in accordance with the deceased’s wishes
8. Explanation of the process involved in renouncing the position of executor, including completing the appropriate forms and filing with the Supreme Court.

The wills and estates lawyers lawyers at BSM Sydney Lawyer provide a free, no obligation, 20-minute consultation.

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BSM Lawyer Sydney have offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.