Overview

Now that you have determined if a valid Will is in place and you have located it if one exists you should –
where a Will exists:
  • determine who the Executor(s) named are;
  • determine if the Executor(s) want(s) to or can take on the duties; and
  • if multiple co-Executors decide to act jointly or authorise one Executor to act on their behalf.
where no Will exists:
  • determine who the Senior Available Next of Kin is; and
  • determine if the Senior Available Next of Kin has the capacity and wants to take on the duties of Administrator.
Note: If you are not the Executor nominated in the Will, it is important that you contact that person immediately to inform them of their nomination as the Executor. You may choose to share this page with that person to help with the deceased estate administration.

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5.1 What is the Difference Between an Executor and Administrator

An Executor is the person nominated in the deceased person’s Will. The Executor was likely nominated as a trusted person who knows the deceased person well. Hence being able to administer the deceased estate in the best interest of the deceased person to fulfil their final wishes. Where a Will exists, in most cases one or more Executors are nominated but there may be a Will that doesn’t nominate anyone. In this case the person taking on the role and duties would also be referred to as Administrator explained below.

An Administrator is mostly a senior available Next of Kin of the deceased person who agrees to take on the role and duties to administer the deceased estate according to the legislation where no Will is in place.

5.2 Responsibilities of an Executor and Administrator

As the Executor named in a Will or Administrator where there is no Will, your administrative duties are to: Fiduciary duties
As an Executor, Administrator or Next of Kin you represent the deceased estate, entrusted by the deceased person where you were nominated under the Will, to hold in trust their money and other assets before they are distributed to Beneficiaries. By taking on this role you will uphold the following duties always:
  • act in good faith;
  • act in the best interest of the deceased estate; and
  • not make decisions or take actions that will benefit you directly or indirectly (also known as conflict of interest).

In summary, the main objectives of an Executor or Administrator are to establish the value of the estate, administer it and distribute the estate to its Beneficiaries. This Process Guide will assist you to work through each commonly known step.

5.3 Decide if You Wish to Take on the Executor or Administrator Role

If you are the person or one of the persons named Executor in the Will or you are the most senior available Next of Kin who will most likely be administering the deceased estate, you should first decide whether or not you want to take on the duties outlined above.

Some of the duties may seem daunting at first, but simplyEstate provides clear guidance to help you navigate through the estate administration. simplyEstate has also partnered with numerous trusted service providers across Australia for each step when things get a bit tricky or you want to take advantage of some support along the way.

Important considerations when deciding to accept to act as the named Executor or as Administrator are that:
  • the deceased has likely nominated you based on their trust and belief in your ability to administer the estate as per their wishes if a Will is in place;
  • deceased estate administration on average takes between six and 12 months depending on the complexity and size of the estate; and
  • a good relationship with the immediate family and Beneficiaries is in place or can be established to ensure the estate can be administered and distributed as intended.

If you decide to do take on the duties and act on behalf of the deceased, congratulations! You can always count on simplyEstate to help. You can contact us via email or book a first free phone appointment if you are ever in doubt or don’t know where to start.

The decision to take on the duties as Executor or Administrator should be made as soon as possible and before taking on any duties of the estate administration. The reason for this is to protect the estate and its Beneficiaries as well as creditors. If you intend not to take on the duties it is recommended not to start with the administration process if reasonable and your specific circumstances allow, as it may be interpreted as having assumed the Executor or Administrator role and you may be unable to resign (also referred to as renounce).

However, you may still be able to renounce your role as Executor or Administrator after making arrangements for the body transport and funeral to not delay this important activity if your specific circumstances require this.

5.4 Who Administers an Estate without a Will (Intestate)

When no Will can be found and the family is also unaware of a Will having been put in place, it is said that the person died intestate. The Next of Kin who will most likely be appointed the Administrator will administer the deceased estate following simplyEstate’s Process Guide.

Next of Kin is not defined by law in Australia. The deceased person’s Next of Kin will likely be considered in this order of priority:
  • the deceased person’s spouse;
  • children over the age of 18;
  • parents; and
  • siblings over the age of 18.

5.5 Will with One Executor

Wills that only name a single Executor are simpler to administer as the person appointed can go through the administration process without needing joint authorisations. Sole Executors will also be able to best act in the interest of the deceased without getting entangled in disagreement between co-Executors.

5.6 Will with Multiple Executors

Wills that name multiple Executors can be more difficult to administer as the persons appointed need to act jointly unless Executors are differentiated in the Will as primary or secondary (also referred to as substitute or alternative) Executors.
If the Will expresses joint executorship or does not differentiate, the Executors can agree to act jointly or authorise one of the Executors to act on their behalf as if they were the sole Executor nominated in the Will.

If you agree to act jointly, you can move to Step 5.8 below.
If you want to authorise one of the Executors to act on everyone’s behalf, then you can follow the process outlined below for the relevant State/Territory:

New South Wales (NSW) – Sydney change State

Refer to Step 5.7 – Resigning (renouncing) as Executor or Administrator below if you want to renounce your right as Executor.

Relevant Website

Read about ‘Executors not able to act’ here

Victoria (VIC) – Melbourne change State

Refer to Step 5.7 – Resigning (renouncing) as Executor or Administrator below if you want to renounce your right as Executor.

Queensland (QLD) – Brisbane change State

Refer to Step 5.7 – Resigning (renouncing) as Executor or Administrator below if you want to renounce your right as Executor.

5.7 Resign (Renounce) as Executor or Administrator

If you are nominated as an Executor in the Will and are unable or unwilling to act as Executor, you can officially renounce your appointment. In this situation, the secondary (also referred to as substitute or alternative) Executor(s) will be appointed if there were multiple Executors nominated in the Will.

If no secondary (also referred to as substitute or alternative) Executor is nominated in the Will, then:
  • a close relative;
  • a close friend;
  • a third-party Executor (e.g. Lawyer); or
  • your State/Territory’s Public Trustee,
    may be appointed.

If you are not nominated as the only Executor on the Will, you can complete the relevant documents and provide these to the Executor who will apply for Grant of Probate as outlined in Step 27 – Apply for Grant of Probate and Letters of Administration or you can submit and file your renouncing document directly with the relevant Supreme Court by State/Territory as explained below:

New South Wales (NSW) – Sydney change State

Supreme Court of New South Wales

Phone: 1300 679 272
Opening Hours: Monday – Friday, 8:30am – 4:30pm AEST
Email: sc.probate@justice.nsw.gov.au
Address: Law Courts Building, Level 5, 184 Phillip Street, Sydney NSW 2000
Post: Supreme Court of NSW, GPO Box 3, Sydney NSW 2001

Process – Paper

The following documents and templates can be used for a paper-based submission.
For complicated applications and when in doubt, it is recommended to seek legal advice. simplyEstate partners with experienced law firms who can assist with completing this task.

Relevant Documents
You will need to provide the following documents or as requested by the Supreme Court: Instructions

Read how to complete a renunciation form here

Relevant Legislation

PROBATE AND ADMINISTRATION ACT 1898 (NSW) Section 69 (Austl.) (accessed 20/10/2018)

Victoria (VIC) – Melbourne change State

Supreme Court of Victoria

Phone: 03 8600 2000
Opening Hours: Monday – Friday, 9:30am – 4:00pm AEST
Email: probate@supcourt.vic.gov.au
Address: Level 2, 436 Lonsdale Street, Melbourne Victoria 3000
Post: Probate Office, Supreme Court of Victoria, 210 William Street, Melbourne Victoria 3000

Process

The relevant documents must be completed and filed with the Probate Office of the Supreme Court in person.
For complicated applications and when in doubt, it is recommended to seek legal advice. simplyEstate partners with experienced law firms who can assist with completing this task.

Affidavits
You must swear or affirm your Affidavit(s) in front of a:
  • Justice of the Peace;
  • a practicing lawyer with a current certificate; or
  • an authorised witness at the Supreme Court Probate Office when lodging the application.
You and one of the above listed witnesses must sign:
  • each page of the Affidavit; and
  • the final page of the Affidavit.
Relevant Documents
You will need to provide the following documents or as requested by the Supreme Court: Relevant Legislation

ADMINISTRATION AND PROBATE ACT 1958 (VIC) Section 15 (Austl.) (accessed 20/10/2018)

Queensland (QLD) – Brisbane change State

Supreme Court of Queensland

Phone: 07 3236 1855
Opening Hours: Monday – Friday, 9:00am – 4:00pm AEST
Email: enquiries@queenslandreports.com.au
Address: QEII Courts of Law Complex, 415 George Street, Brisbane Qld 4000
Post: PO Box 15167, City East Qld 4002

Process – Paper

The following documents and templates can be used for a paper-based submission.
For complicated applications and when in doubt, it is recommended to seek legal advice. simplyEstate partners with experienced law firms who can assist with completing this task.

Relevant Documents
You will need to provide the following documents or as requested by the Supreme Court:
  • Form 114 – Renunciation where a Will is in place and you were nominated as Executor
  • Form 115 – Renunciation (intestacy) where no Will is in place and you are the only Next of Kin and don’t wish to take on the duties of Administrator
Website

QLD Government

Relevant Legislation

SUCCESSION ACT 1981 (QLD) Section 46 (Austl.) (accessed 4/1/2018)

5.8 Dispute Between Executors and Next of Kin

It is not unusual that the Executors, Administrator, Next of Kin and Beneficiaries may disagree about certain views and decisions along the way. Disagreements are ideally discussed and mediated between the parties.

Some common examples of complaints and disagreements are:
  • The Executor or Administrator did not sufficiently communicate with the Beneficiaries;
  • The time taken by the Executor or Administrator to administer the estate;
  • The Executor or Administrator is seen to be taking advantage of the powers vested in them to advance their personal interests and not those of the Beneficiaries (conflict of interest);
  • The Executor or Administrator did not locate all the property and did not insure it appropriately;
  • The Executor or Administrator did not keep accurate accounts; and
  • The Executor or Administrator did not administer the estate as per the Will.

Most issues can be resolved through open and frequent communication. As the Executor or Administrator of a deceased estate it is worthwhile letting family members know what needs to be done, what you are currently working on and what the next steps are.

You may also find it useful to share this website with them, so they can learn about the process, appreciate the work you are doing for them and provide you with support rather than questioning your actions.

simplyEstate is here to help. You can contact us via email or book a phone appointment to discuss the administration or any disputes you have so you can determine the best course of action.

Remember, simplyEstate cannot provide advice as per our Terms & Conditions but can provide general guidance or help you seek the appropriate support for your situation.


Complete Step

Actions and Decisions to Complete Step Yourself

If you have decided to tackle this Step yourself after reading and understanding the above, you may want to:

  1. Read carefully the duties of an Executor and Administrator
    (see Step 5.2 above);
  2. Determine who the Executor(s) named in the Will are, where a valid Will is in place
    (see Step 5.3 above);
  3. Determine who the likely Administrator will be, where no valid Will is in place
    (see Step 5.4 above);
  4. Agree which Executor(s) named in the Will want to or can take on the duties solely or jointly and follow the process outlined in Step 5.6
    (see Step 5.5 and Step 5.6 above); and
  5. Complete the necessary paperwork if Executor(s) who are named in the Will want to renounce their executorship
    (see Step 5.7 above and forms below).

Click for supporting:

Information

Forms

Legislation

New South Wales (NSW) – Sydney change State
Victoria (VIC) – Melbourne change State
Queensland (QLD) – Brisbane change State

Cost & Effort

Reading: 20 mins
Preparing: 10 mins
Completing: 1-2 hrs
Total: 1:30-2:30 hrs
Cost: $0

Effort and cost are general estimates only and are based on the assumption that you complete this step without experienced support.

Instructions

To find out how this Process Guide works, access the instructions here.

Glossary

To find out what the capitalised words mean, access the glossary here.

New South Wales (NSW) – Sydney change State
Victoria (VIC) – Melbourne change State
Queensland (QLD) – Brisbane change State

Forms

Renouncing Executorship & Administratorship in NSW

Form 123 – Renunciation of probate

Renouncing Executorship & Administratorship in VIC

Renunciation of Probate
Affidavit of Verification – Renunciation of Probate

Renouncing Executorship & Administratorship in QLD

Form 114 – Renunciation where a Will is in place and you were nominated as Executor
Form 115 – Renunciation (intestacy) where no Will is in place and you are the only Next of Kin and don’t wish to take on the duties of Administrator

Refer to Step 5.7 above for more detail about these forms​.
Other forms not listed here may be required based on your specific circumstances.

Checklists & Tools

Use Australia’s smartest Assets & Liabilities Inventory to automatically calculate the estate value for Grant of Probate.
New South Wales (NSW) – Sydney change State
Victoria (VIC) – Melbourne change State
Queensland (QLD) – Brisbane change State

Legislation & Rules

Renouncing Executorship & Administratorship in NSW

PROBATE AND ADMINISTRATION ACT 1898 (NSW) Section 69 (Austl.) (accessed 20/10/2018)

Renouncing Executorship & Administratorship in VIC

ADMINISTRATION AND PROBATE ACT 1958 (VIC) Section 15 (Austl.) (accessed 20/10/2018)

Renouncing Executorship & Administratorship in QLD

SUCCESSION ACT 1981 (QLD) Section 46 (Austl.) (accessed 2/1/2021)

Other legislation and rules not listed here may apply to your specific circumstances.


Ask for Support

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Executor & Administrator Support

If you are still unsure about this Step or if you should engage a lawyer, we’re only a phone call away to point you in the right direction. See how simplyEstate can help.

Trusted Partner Support

When you need specific expertise, get in touch with our trusted partners near you.

New South Wales (NSW) – Sydney change State
Victoria (VIC) – Melbourne change State
Queensland (QLD) – Brisbane change State

Estate & Probate Lawyers Sydney

apply for grant of probate or letters of administration with support from Atkinson Vinden Lawyers in Chatswood Sydney New South Wales NSW

Atkinson Vinden Legal

Chatswood & Sydney CBD

We can help with:
  • establishing validity of a Will
  • determining the Executors or Administrators (without a Will)
  • administering end-to-end
Find out if we can help during an obligation free phone consultation. Call 02 8448… Find Out More
apply for grant of probate or letters of administration with support from Szabo and Associates Solicitors in Surry Hills Sydney New South Wales NSW

Szabo & Associates Solicitors

Surry Hills, Eastern Suburbs & North Shore

We can help with:
  • establishing validity of a Will
  • determining the Executors or Administrators (without a Will)
  • administering end-to-end
Find out if we can help during an obligation free phone consultation. Call 02 9281… Find Out More
apply for grant of probate or letters of administration with support from Marsdens Law Group in Sydney Camden Campbelltown Leppington Liverpool New South Wales NSW

Marsdens Law Group

Camden, Campbelltown, Leppington, Liverpool, Sydney CBD

We can help with:
  • establishing validity of a Will
  • determining the Executors or Administrators (without a Will)
  • administering end-to-end
Find out if we can help during an obligation free phone consultation. Call 02 4626… Find Out More

Estate & Probate Lawyers Melbourne

apply for grant of probate or letters of administration with support from Sharrock Pitman Legal in Glen Waverley Victoria VIC

Sharrock Pitman Legal

Glen Waverley

Our Accredited Specialist can help with:
  • establishing validity of a Will
  • determining the Executors or Administrators (without a Will)
  • administering end-to-end

Find out if we can help during an obligation free phone consultation.

Call 1300 20… Find Out More

apply for grant of probate or letters of administration with support from Carew Counsel Solicitors in Melbourne Victoria VIC

Carew Counsel

Melbourne CBD

We can help with:
  • establishing validity of a Will
  • determining the Executors or Administrators (without a Will)
  • administering end-to-end

Find out if we can help during an obligation free phone consultation.

Call 03 9670… Find Out More

apply for grant of probate or letters of administration with support from McNab McNab & Starke Lawyers in Melbourne Essendon Sunbury VIC

McNab McNab & Starke

Melbourne CBD, Essendon & Sunbury

We can help with:
  • establishing validity of a Will
  • determining the Executors or Administrators (without a Will)
  • administering end-to-end

Find out if we can help during an obligation free phone consultation.

Call 03 9670… Find Out More

Estate & Probate Lawyers Brisbane

apply for grant of probate or letters of administration with support from Perspective Law in Brisbane QLD

Perspective Law

Brisbane

We can help with:
  • establishing validity of a Will
  • determining the Executors or Administrators (without a Will)
  • administering end-to-end

Find out if we can help during an obligation free phone consultation.

Call 07 3839… Find Out More

apply for grant of probate or letters of administration with support from The Estate Lawyers in Brisbane Gold Coast QLD

The Estate Lawyers

Brisbane CBD & Gold Coast

We can help with:
  • establishing validity of a Will
  • determining the Executors or Administrators (without a Will)
  • administering end-to-end

Find out if we can help during an obligation free phone consultation.

Call 07 3229… Find Out More

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