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A grant of probate or administration gives the executor or administrator legal responsibility for the estate. The beneficiaries of the estate have a right to ensure that there is proper administration of the estate. If an executor or administrator fails to administer the estate properly, they may be personally liable to repay or compensate the estate.
If you are an executor or administrator, you have a duty to protect the estate and to 'call in' (collect) the assets owned by the deceased.
An executor or administrator must act in good faith, with due care and diligence. Before the estate is distributed according to the will or the rules of intestacy, the executor or administrator holds the estate as a 'trustee' for the beneficiaries. This means that the executor or administrator must deal with the estate responsibly, carefully and in a timely manner and must not mix the estate property with their own property.
For more information, see Rest assured: a legal guide to wills, estates, planning ahead and funerals in NSW.
If you are an executor or administrator, you will need to pay any debts that the deceased owed from the estate, such as unpaid accounts and tax returns.
You should get advice from an accountant to see whether you need to lodge a final tax return for the deceased. You may need to lodge a final tax return if the deceased received income from employment or owned investments at the time of death.
The deceased's debts need to be paid before anything is distributed to the beneficiaries.
For more information, see
Dealing with the estate debts.
The executor or administrator may choose to publish a notice on the NSW Online Registry before any part of an estate is distributed to beneficiaries. This is called a 'Notice of Intended Distribution'. This notice gives 30 days for creditors to make a claim on the estate. It is not mandatory for an executor or administrator to publish the notice, however, in some circumstances the notice may provide the executor or administrator with some protection from personal liability, if there are future claims from creditors.
The notice can be published through the NSW Online Registry.
There are fees to publish a notice. If you do not have access to the internet or if you do not own a credit card, you may file the form and pay the fee at the Supreme Court registry in person or by post
You can get a copy of the form:
Sample Notice of Intended Distribution (Form 114)
For more information on how to publish a notice of intended distribution through the NSW Online Registry, see Notice of intended distribution of an estate on the Supreme Court website.
Once the executor or administrator has collected the assets and paid the debts of the estate, they can distribute the estate to the beneficiaries.
A legacy (gift of money) must
be distributed within 12 months otherwise the beneficiary can claim interest.
The executor or administrator may decide to have a solicitor assist them after probate or administration has been granted. There will be additional legal costs which are usually paid by the estate. The executor or administrator should consider the terms of the solicitor's costs agreement and disclosure and decide whether there is enough money in the estate to cover these costs. These costs are not regulated by the scale of costs that applies for legal work done up to the grant.
For more information, see Distributing the estate.
Rest assured: a legal guide to wills, estates, planning ahead and funerals in NSW
NSW Trustee and Guardian
Supreme Court of NSW