Being appointed as an executor is often seen as an honour; a sign of trust from someone who values your judgment and integrity. However, many Western Australians accept this responsibility without fully understanding the weight of the obligations they’re taking on, or the personal liability they may face if things go wrong.
Here’s something many people don’t realise: just because you’ve been named as an executor doesn’t mean you have to accept the role. You have every right to decline, with so many of our clients recognising that estate administration requires the time and expertise they just don’t have, which is where we can step in and do it all for you.
At Solomon Hollett Lawyers, we regularly see executors who’ve made well-intentioned mistakes that have resulted in costly litigation, personal liability, and family disputes that could have been avoided. Understanding your duties and the common traps can make the difference between smoothly administering an estate and finding yourself personally liable for losses.
The Executor’s fundamental duties
As an executor in Western Australia, you’re not simply distributing assets according to the deceased’s wishes. You’re taking on a fiduciary role that comes with strict legal obligations. You must act with the utmost good faith, placing the interests of beneficiaries above your own, and managing the estate with the care and skill of a prudent businessperson.
These aren’t mere suggestions, they’re legal requirements that courts will hold you to account for if challenged.
Common mistakes that lead to liability
Distributing the estate too quickly
One of the most common and costly mistakes is distributing assets before ensuring all debts and potential claims have been addressed. Executors often feel pressure from beneficiaries eager to receive their inheritance, but premature distribution can leave you personally liable.
In Western Australia, family provision claims must be brought within six months of the grant of probate. If you distribute the estate before this period expires and a successful claim is later made, you may be required to personally repay those funds. Similarly, overlooking creditors or tax liabilities can result in personal liability for debts the estate should have covered.
Failing to properly identify and value assets
Executors have a duty to identify all estate assets and obtain proper valuations. We’ve seen cases where executors have overlooked bank accounts, shares, or superannuation entitlements, or have distributed assets based on rough estimates rather than professional valuations.
This is particularly problematic with real estate in Perth’s volatile property market, or with business interests where valuations require specialist expertise. Inaccurate valuations can lead to beneficiaries receiving unequal distributions, resulting in disputes and potential claims against the executor.
Mixing personal and estate finances
Never use estate funds for personal purposes, even temporarily, and even if you intend to repay them. Maintain separate estate bank accounts and keep meticulous records of every transaction. Commingling funds is a serious breach of fiduciary duty and can raise questions about your integrity, making it difficult to defend other decisions you’ve made.
Making investments without authority
Unless the Will specifically grants you investment powers, you generally cannot change the nature of estate assets. Converting cash to shares, or selling shares to purchase property, without proper authority can constitute a breach of duty, even if the investment performs well.
Favouring one beneficiary over another
Executors must remain impartial between beneficiaries. This becomes particularly challenging when you’re both an executor and a beneficiary, or when dealing with family disputes. Allowing one beneficiary to live in estate property rent-free while others wait for distribution, or providing information to some beneficiaries but not others, can constitute breaches of your duty to act impartial.
Poor communication and record-keeping
Beneficiaries are entitled to information about the estate’s administration. Failing to respond to reasonable requests, refusing to provide estate accounts, or keeping inadequate records creates suspicion and often leads to litigation. Many disputes arise not from actual wrongdoing, but from poor communication that causes beneficiaries to assume the worst.
You don’t have to do this alone… or at all
If you’re feeling overwhelmed by these responsibilities, you have options. You can renounce your appointment as executor before you begin administering the estate, or you can step aside in favour of a professional executor.
At Solomon Hollett Lawyers, we regularly act as professional executors, handling the entire estate administration process on behalf of families. The best part? These costs come from the estate itself, not your personal funds. This means the deceased’s estate pays for professional administration, ensuring everything is done correctly while removing the burden and personal liability from your shoulders.
This is particularly valuable when:
- The estate is complex or high-value
- There are difficult family dynamics or anticipated disputes
- You live interstate or overseas
- You don’t have the time or expertise to handle the administration
- You’re concerned about personal liability
Protecting yourself as an Executor
If you do choose to take on the role, most traps are avoidable with proper guidance:
Seek professional advice early
Engaging a lawyer experienced in estate administration isn’t an unnecessary expense—it’s a form of insurance against personal liability. The cost of proper legal advice is invariably less than the cost of defending a claim for breach of executor duties. Remember, these legal costs are paid by the estate, not by you personally.
Don’t rush distribution
Wait until the six-month family provision period has expired, all creditors have been paid, and all tax obligations have been finalised. If beneficiaries are pressing for early distribution, explain the risks and consider partial distributions only after obtaining appropriate legal advice.
Keep detailed records
Document every decision, maintain all receipts, and keep beneficiaries regularly informed. If your administration is ever challenged, comprehensive records are your best defence.
Consider Executor’s insurance
For complex or high-value estates, or where family disputes are anticipated, executor’s insurance can provide valuable protection against claims.
Know when to seek court directions
If you’re uncertain about any aspect of the estate’s administration, you can apply to the Supreme Court for directions. Following court directions provides protection against later claims that you’ve breached your duties.
When things go wrong
If you’ve already made mistakes as an executor, early legal advice can often minimise the damage. In some cases, seeking beneficiary consent or court approval for your actions can resolve potential issues before they escalate into costly litigation.
Being an executor is a serious responsibility that shouldn’t be taken lightly. Whether you choose to take on the role yourself with professional guidance, or prefer to have Solomon Hollett Lawyers handle the entire administration on your behalf, we’re here to ensure the process runs smoothly and the deceased’s wishes are properly carried out—all at the estate’s expense, not yours.
If you’ve been appointed as an executor and are unsure whether to accept the role, or if you’re concerned about the administration of an estate, contact our experienced team of Wills and estate lawyers for guidance tailored to your specific circumstances.
