The executor or administrator of an estate (also known as the “legal personal representative” and referred to as ‘the executor’ herein) is responsible for:

1. collecting the deceased’s assets;
2. paying the deceased’s liabilities; and
3. administering the estate:-
   1. where there is a will – in accordance with the will; or
   1. where there is no will (called an intestate estate) – pursuant to the rules of intestacy.

Duties

The executor’s duties include:

1. taking custody of and seeing to the disposal of the deceased’s body;
2. collecting the assets of the estate;
3. selling the assets of the estate (unless the will specifies that the assets are to be given to a beneficiary);
4. paying the testamentary expenses and liabilities of the estate;
5. administering the estate in accordance with the will or the rules of intestacy;
6. keeping proper accounts; and
7. carrying on or defending against causes of action involving the estate (note: that the survival of contractual rights allows executors to enforce or be sued on contracts the deceased entered into during their lifetime).

Executors also have a fiduciary duty to the estate beneficiaries and must discharge their duties in the beneficiaries’ best interests. Where an executor breaches their fiduciary duty (e.g. by wasting or misappropriating estate assets or delaying administration of the estate), the beneficiaries may:

1. seek revocation of the grant of Probate or Letters of Administration; and
2. require the executor to account to the estate for any loss caused by their action or inaction.

Rights – Commission

The role of executor is largely gratuitous: they are expected to carry out their duties without seeking remuneration from the estate. However, where the work done during administration warrants a benefit or a further benefit, an executor is entitled to seek commission for their “pains and trouble”.

The executor must file and verify the estate accounts as part of their application for commission.

A Registrar of the Supreme Court of NSW determines an application for commission. They consider:

1. the amount of income collected;
2. the amount of capital realised;
3. the value of assets transferred to beneficiaries; and
4. where a business was carried on — the gross receipts and net profit earned or loss incurred, during the period of the accounts.

The amount of commission is determined as a percentage of the above amounts. The Registrar will also consider work the executor actually performed themselves as opposed to work they instructed agents (e.g. solicitors or accountants) to perform.

If the executor or a beneficiary does not agree with the Registrar’s determination, they can appeal to a Judge in the Supreme Court of NSW.

Contact us if you have any questions about an executor’s rights and duties in NSW