Summary:
- An executor carries out the wishes in a Will and manages the estate after someone dies.
- In WA, the role starts immediately upon a person’s death and includes legal duties like applying for probate and distributing assets.
- Executors must locate the Will, arrange the funeral, secure assets, and follow the Will carefully.
- If there’s no Will, the estate is handled under WA’s intestacy laws (often causing complications).
- Mistakes like distributing too early or failing to communicate with beneficiaries can lead to personal liability.
Being named as an executor in a Will means someone trusted you to carry out their final wishes and manage their affairs after they’ve gone. But it is also a heavy responsibility and can feel overwhelming — especially if you’re navigating grief, family dynamics, or legal paperwork for the first time.
In Western Australia, the role of an executor can be complex and emotionally demanding. If you’ve been appointed in a Will, are planning your own estate, or simply want to understand the role, this guide is for you. We’ll walk you through the key duties, decisions, and steps with clarity and confidence.
What is an executor and what do they do?
In Western Australia, an executor is the person legally appointed in a Will to manage a deceased person’s estate. Their job is to carry out the terms of the Will, protect estate assets, and ensure everything is handled lawfully.
The executor’s authority begins as soon as the person passes away. Their duties are legally binding and come with personal responsibility. If things go wrong, an executor can be held liable for mistakes — even unintentional ones.
The main legislation that govern executor duties in WA include the Administration Act 1903 (WA), the Non-contentious Probate Rules 1967 (WA), and the Trustees Act 1962 (WA).
These set out what must happen when someone dies, how assets are handled, and how estates should be distributed.
However the key “law” that governs what an executor must do when someone dies is not conveniently written in one place. It comes from centuries of case law and legislation, which combined together, sets out the obligations and duties of an executor.
Key responsibilities of an executor
- Locate the Will and confirm their appointment
- Arrange the funeral and register the death
- Secure and insure estate assets
- Apply for probate (if required)
- Identify and value all assets and liabilities
- Pay outstanding debts, taxes, and estate expenses
- Distribute remaining assets to the beneficiaries as directed in the Will
- Keep clear records and act in the best interests of the estate
Executors must act with honesty, care, and impartiality — a legal obligation known as a fiduciary duty. They must not put their own interests ahead of the beneficiaries’, and they are expected to follow the Will strictly unless a Court orders otherwise.
Step-by-step duties of an executor in Western Australia
If you’ve been appointed as an executor, it’s normal to feel overwhelmed (especially in the days following someone’s death). This section breaks down the key duties into five practical steps so you know what to do, when to do it, and how to avoid mistakes that could lead to liability.
Step 1: First actions after someone dies
Your role as executor begins the moment the person passes away, even before any formal paperwork is filed. These early tasks are about securing the estate and starting the legal process on the right foot.
What to do first:
- Locate the original Will – This confirms your appointment and outlines the deceased’s wishes. It may be stored with their solicitor, in their home, or in a safety deposit box.
- Secure the estate – Protect the deceased’s home, valuables, and sensitive documents. Change locks if necessary and make sure property insurance is in place.
- Confirm any funeral instructions – The Will may include preferences for burial or cremation. As executor, you’re usually the one responsible for arranging the funeral.
- Obtain the death certificate – This is issued by the funeral director in most cases and is required for probate and other legal steps.
- Get legal advice early – Mistakes made now can cause serious issues later. Legal costs are typically covered by the estate.
Step 2: Apply for probate (if required)
Before you can legally manage or distribute the estate, you may need to apply for Probate, which is a formal grant from the Supreme Court of Western Australia that confirms the Will is valid and gives you legal authority to act as executor.
When is probate required?
Not every estate needs probate. You’ll usually need to apply if:
- The deceased owned real estate in their name only
- There are significant bank accounts or investments
- Superannuation or insurance payouts are made to the estate (rather than directly to a beneficiary)
Smaller estates, or those where assets are jointly held, may not require probate — but it’s worth getting legal advice to confirm.
What’s involved in the probate process?
To apply for probate in WA, you must:
- Complete the relevant forms through the Supreme Court of WA
- Prepare an affidavit confirming your role as executor and the circumstances of the death
- Attach the original Will and the death certificate
- Provide an inventory of the deceased’s assets and liabilities
- Advertise your intention to apply for probate (as required by the Court)
- Lodge the application and pay the filing fee
If approved, the Court issues a sealed Grant of Probate, along with an official copy of the Will. This is your green light to start administering the estate formally.
Also, it should be noted that there’s a common misconception that you have to wait six months from the date of death to apply for probate. That’s a common myth, and in fact, you can apply whenever. The six-month rule relates to potential challenges under the Family Provision Act, not probate itself.
What if there’s no Will?
If there’s no valid Will, the person is considered to have died intestate. Instead of probate, a family member must apply for Letters of Administration, and the estate is distributed according to a legal formula set out in the Administration Act 1903 (WA).
The formulas are rarely ideal and often cause confusion and occasionally conflict.
We’ve explained the full process in our blog What happens if you die without a Will in Australia?.
Step 3: Gather and protect estate assets
Now that you have the legal authority, it’s time to identify, collect, and safeguard the deceased’s assets. This step is where many executors underestimate the detail and documentation required.
Tasks in this stage:
- Identify all assets and liabilities – including bank accounts, property, shares, vehicles, superannuation, and life insurance
- Notify institutions – banks, Centrelink, insurers, utility providers, and any others the deceased had dealings with
- Maintain insurance coverage – if property isn’t insured and something happens (e.g. fire or theft), the executor may be personally liable
- Open a separate estate account – never mix estate funds with your own funds
- Keep detailed records – every asset collected, debt paid, and decision made should be documented and records kept
Step 4: Manage the estate and resolve debts
Once probate is granted and assets have been gathered, the formal process of administering the estate begins. This is about tying up financial and legal loose ends before any inheritance is distributed.
It sounds simple, but in many cases, this stage is where things become complicated. The estate might include trusts, business interests, overseas assets, or estranged family members.
Key tasks include:
- Paying debts and liabilities – including loans, credit cards, utility bills, and final tax obligations. These must be settled before anything is distributed.
- Lodging tax returns – both the final individual return for the deceased, and a return for the estate (if needed).
- Managing estate expenses – such as ongoing property costs, insurances, and professional fees.
- Communicating with beneficiaries – keeping them informed and managing expectations can help avoid tension or disputes.
- Preparing for distribution – once all debts are cleared and the estate is balanced.
If you’re unsure about how to manage this stage, especially with tax or family issues in the mix, it’s wise to seek legal advice. The estate can usually cover this cost, and it’s far less than the cost of mistakes.
Step 5: Distribute the estate
Only once all debts, taxes, and estate costs have been finalised can the executor begin distributing the estate to beneficiaries. This is the stage people often rush, but moving too soon can create legal and financial risks.
What to consider before distributing:
- Check that all debts are paid – including credit cards, loans, council rates, and any income tax or capital gains tax.
- Wait for the challenge window to close – in WA, eligible people have six months from the date of the Grant of Probate to make a Family Provision claim. Distributing the estate before the expiry of this timeframe can leave executors exposed. If a legal claim is already on foot, then executors should wait for it to be resolved before making distributions.
- Understand the Will (or intestacy rules) – if the Will is vague or confusing, or if there’s no Will at all, it’s crucial to get legal advice before making distributions.
Finalise with documentation
Every distribution should be recorded with care. Executors should:
- Keep a detailed statement of distribution
- Get signed receipts from beneficiaries
- Retain copies of all bank transfers or asset transfers
This protects you if questions or claims arise later.
Common problems executors face
Even with the best intentions, executors can find themselves caught in difficult, confusing, or high-pressure situations. Many problems come not from bad decisions — but from misunderstanding the role, trusting a poorly drafted Will, or being caught between family members with competing interests.
Here are some of the most common challenges we see.
1. Poorly drafted or DIY Wills
Homemade or “do-it-yourself” Wills are one of the biggest sources of confusion. They may be vague, inconsistent, or missing key information — making the executor’s job harder and increasing the risk of disputes.
For example, a Will that says “divide equally between my children” sounds simple, until you realise one child is estranged, one’s deceased, and there’s no mention of grandchildren.
2. Complex asset ownership
Some estates involve business interests, family trusts, self-managed superannuation, or overseas property. These assets often sit outside the Will, or have specific rules that require extra steps to access.
Executors are expected to know what to do with assets that may not even belong to the estate directly. It’s easy to make missteps without early legal advice.
3. Unfair instructions
Wills can contain harsh provisions and exclude family members in circumstances that seem unfair or unwarranted. A will may leave everything to one sibling and nothing to another.
Wills can also contain confusing or outdated clauses. For example, an executor may be instructed to give the family home to one sibling while other assets go to another, only to discover that the family home has increased significantly in value since the Will was prepared while the other assets haven’t, leading to unintended disparity and resentment between siblings.
In Western Australia, what’s “equal” isn’t always considered “fair”, and vice versa. However, if proper provision hasn’t been made for a family member, there is a real risk that they challenge the Will, such as by making a Family Provision Act claim.
4. Family conflict and estranged children
Tensions often flare during estate administration, especially in blended families. An estranged child may suddenly appear, questioning the Will, or beneficiaries may accuse the executor of bias or secrecy.
If you’re the executor and also a beneficiary, you must be especially careful to act fairly and transparently — or risk potentially being removed from the role.
5. Misunderstanding legal obligations
Executors are legally responsible for how the estate is handled. That means:
- Waiting to distribute until debts and taxes are resolved
- Keeping estate and personal finances completely separate
- Insuring estate property
- Keeping clear records of every action and decision
If you act too quickly, pay someone the wrong amount, or miss a key tax deadline, you may be personally liable.
6. Mental capacity concerns
Many Wills are made late in life — sometimes when the Will-maker is affected by dementia, Alzheimer’s, or declining mental capacity. Even if the Will appears valid, questions about capacity can trigger disputes or court challenges.
Executors caught in this situation must tread carefully. If there are doubts about when the Will was made or who influenced it, seek legal advice early.
When executors can be personally liable
Most people don’t realise that being an executor comes with legal risks. If something goes wrong — even unintentionally — you may be personally liable for the consequences. The estate can usually cover the cost of professional advice, but if you make a serious misstep, the financial fallout could land on you.
Delays
Waiting too long to apply for probate or start managing the estate can frustrate beneficiaries and cause losses, especially if bills go unpaid or property falls into disrepair. In some cases, beneficiaries can apply to have the executor passed over or removed for unreasonable delay.
Mismanagement of estate assets
Executors are expected to act prudently. If you invest estate funds poorly, sell assets below value, or fail to follow the Will’s instructions, you could be personally responsible for the shortfall.
Not insuring property
If estate property is damaged, destroyed, or broken into (and wasn’t insured), the executor may be liable for the loss. This is a common trap, particularly when there’s a delay in selling or transferring property.
Distributing the estate too early
Distributing assets before all debts, taxes, or legal claims are resolved can be a costly mistake. If a creditor or claimant later comes forward, you may need to personally repay what was wrongly paid out.
Acting with a conflict of interest
Executors must put the estate’s interests ahead of their own. If you benefit personally from a decision — or appear to favour one beneficiary over another — it can breach your duties and open the door to legal action.
Breaching fiduciary duty
All executors have a fiduciary duty to act honestly, carefully, and in the best interests of the estate. That means keeping accurate records, managing funds properly, and seeking help when needed. Breaching this duty (even through inaction) can result in serious legal consequences.
Executor rights and protections
While the role of executor comes with legal responsibilities, it also comes with important rights and protections. If you’ve been appointed as an executor, it’s not about doing everything alone — the law recognises the weight of the role and allows you to protect yourself along the way.
Here’s what you need to know.
You can seek professional advice
You’re not expected to be a legal or financial expert. Executors are encouraged to seek legal, accounting, and tax advice when needed, especially if the estate is complex or contentious. These professional costs are usually paid from the estate and not from your personal funds.
You can be paid for your time
Executors can claim reasonable compensation for their time and effort in administering an estate. Sometimes a Will contains provisions about payment to an executor, otherwise payment can be agreed upon by beneficiaries or an application is made to the Court under the Trustees Act 1962 (WA). This is known as executor’s commission.
You can decline the role
Being named as executor doesn’t mean you’re forced to take it on. If you haven’t started acting in the role, you can formally renounce your appointment. If there’s a substitute named in the Will, they may step in. Otherwise, the Court will appoint someone else.
You’re not liable for honest mistakes made in good faith
If you’ve acted reasonably, sought proper advice, and done your best to follow the law and the Will, you won’t be penalised for every minor error. The Courts recognise that executors are often navigating unfamiliar territory during an emotional time.
Frequently asked questions about executors
Can an executor also be a beneficiary?
Yes. In fact, it’s very common. Many Wills name a spouse, adult child, or close relative as both executor and beneficiary. While it’s legal, it’s important that executors still act impartially and in the best interests of all beneficiaries.
Can I appoint more than one executor?
Yes, you can appoint more than one executor (and many people do). You might choose two adult children, a sibling and a lawyer, or a trusted friend and professional. Co-executors must act jointly, so only appoint multiple people if you believe they can work together effectively.
What happens if the executor doesn’t want the role?
An executor is not legally required to accept the role. If they haven’t started acting in that capacity, they can formally renounce it. If there’s a substitute executor named in the Will, they may step in. Otherwise, the Court may appoint someone else to administer the estate.
Is there a time limit to finish the administration?
There’s no fixed deadline, but the Court generally expects estates to be finalised within 12 months. Delays beyond that may need to be explained, especially if beneficiaries are waiting on their inheritance.
What if the Will is contested?
If someone challenges the Will — usually through a Family Provision Act claim — the executor must pause distribution and manage the legal response. Executors are responsible for protecting the estate and acting in the best interests of all beneficiaries, which can be difficult during a dispute.
This is an area we specialise in. We regularly assist executors in defending a Will and managing the risks that come with inheritance disputes.
Need help with your role as executor?
Administering a deceased estate can be complex, time-consuming, and emotionally draining. From probate to paperwork, tax to distribution, there’s a lot to manage.
Our team of deceased estate administration lawyers in Perth supports executors through every stage of the process. We’ll help you meet your legal obligations, avoid common pitfalls, and give you the confidence to move forward with clarity.
