Distributing the estate

Once probate or administration has been granted (or if it was not needed), and a notice of intended distribution has been published, the executor or administrator (or next of kin) can distribute the estate after paying the deceased's debts. 

A legacy (gift of money) must be distributed within 12 months otherwise the beneficiary can claim interest.  

​​​Account to the beneficiaries and applying for commission

An executor or administrator is responsible for keeping proper records of all receipts, expenses and assets that have been transferred to the beneficiaries. 

The executor or administrator must verify and file accounts in an estate where:

• the executor or administrator is claiming commission from the estate
• the beneficiary requests it, or
• the court requires the filing of accounts.

If an executor or administrator is required to file accounts they must be verified by a supporting affidavit which provides details of all assets transferred to the beneficiaries and receipts of all payments and expenses.

It is a good idea for the executor or administrator to open up a new bank account in the name of the estate to keep a proper record of how the money has been distributed to the beneficiaries.

An executor or administrator is entitled to claim commission from the estate for their time and effort in dealing with the estate. An executor can either reach an agreement with all the beneficiaries or apply to the Supreme Court for commission to be paid out of the estate. The court will consider the circumstances of the case before allowing commission to be paid. The amount of commission may be calculated as a lump sum amount or percentage.

For more information, see Applying to have Accounts Passed and Applying for Commission on the Supreme Court of NSW website. 

An executor cannot claim commission if they are also named as a beneficiary in the will unless the will specifically entitles the executor to claim commission in addition to their share.

If you are required to file accounts, or you want to apply for commission, you should get legal advice. Failing to file accounts may result in the executor or administrator being fined or charged with contempt of court. 

Distributing an estate when probate or administration is not needed

If probate or administration is not needed in your circumstances, you will be able to distribute the estate after you pay the debts of the deceased. For more information, see Dealing with the estate debts.

The estate must be distributed according to the will of the deceased or the rules of intestacy, if the deceased had no will. For more information, see Entitlements under intestacy.

There are rules that you will need to follow to transfer certain types of property. For more information, see Transferring personal property and Transferring real property.

You should get legal advice before distributing an estate without a grant of probate or administration.

Distributing the estate after a grant of Probate or Letters of Administration

After the grant of Probate or Letters of Administration is made by the Court the executor or administrator can start to distribute the estate. The estate should not be distributed until at least six months after the date of death. This allows time for any claims against the estate.

Before distributing the estate, the executor or administrator may publish a notice of intended distribution and pay the debts of the deceased. For more information, see After probate or administration and Dealing with the estate debts.

In some cases, the executor or administrator can make an interim distribution to a beneficiary. However, there are risks to making early distributions if there is a claim against the estate. 

There are rules that you will need to follow to transfer certain types of property. For more information, see Transferring personal property and Transferring real property.

Pay specific legacies

Where the executor has not paid the legacy to the beneficiary within 12 months from the date of death, the beneficiary is entitled to claim interest until the legacy is received. The interest is calculated according to the relevant rate of interest which is 2% above the cash rate last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to add.

For more information about the current interest rate, go to the Reserve Bank of Australia website.

Where the legacy is paid to a beneficiary living outside of Australia, the beneficiary is responsible for paying any tax or fees for transferring the money into their account.

The executor or personal representative should obtain a written receipt from the beneficiary to confirm that the legacy has been paid. It is also a good idea to provide the beneficiaries with a copy of the financial records and ask them to provide a receipt to acknowledge payment.

If the executor or administrator has not paid the legacy within 12 months, you should get legal advice.

Spouse entitlements

If you are the spouse of the deceased and the deceased died without a will (intestate), and someone else is applying for letters of administration, you have a right to elect to acquire certain property from the estate.

You should get legal advice if you are the spouse of the deceased and you are not applying for letters of administration.​