Executor Mistakes That Can Delay Probate in NSW

Introduction

An executor administering a deceased estate in NSW takes on legal and financial duties that can end in personal liability when handled poorly, making early advice from wills and deceased-estate lawyers especially valuable. Common executor mistakes can delay a probate application, spark beneficiary disputes and stall estate administration for months.

This article outlines the key mistakes executors should avoid, from failing to identify estate assets to improperly handling estate funds, and explains how seeking legal advice early can help protect both the estate and the executor. 

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Initial Will Validation

Oversights Regarding Will Validity & Multiple Documents

An executor’s authority comes from the deceased person’s Will. Before starting the probate application, the executor should therefore confirm that the Will is valid and represents the deceased’s most recent testamentary wishes.

The Will should be:

• the original document, not a copy;
• the most recent testamentary document;
• properly signed and witnessed;
• clearly and consistently dated; and
• free from damage, tears or alterations.

Issues such as improper witnessing, unclear language or alleged undue influence can cause delays in the probate process. Multiple conflicting Wills or the absence of a valid Will may create further complications and require additional legal steps.

Where irregularities are identified, the executor may need to apply to the court for clarification or validation before the estate can be properly administered.

Financial Mismanagement & Asset Identification Failures

Omission of Hidden Assets & Superannuation Claims

An executor must identify, protect and list all estate assets before completing the deceased estate. This may require contacting the following parties:

• financial institutions;
• service providers;
• government departments;
• family members;
• accountants;
• financial advisers; and
• solicitors.

Missing or unknown assets also can delay probate cases. The search should include:

• bank accounts;
• real estate;
• vehicles;
• investments;
• business interests; and
• personal property.

The executor should also check superannuation records and determine whether any superannuation death benefits are payable to the estate. If assets are not secured, damaged or stolen property may expose the executor to personal responsibility.

Neglect of Estate Technology Management & Digital Accounts

Estate administration may also involve digital accounts and estate technology. An executor should identify relevant devices, online accounts and digital records, then secure the passwords needed to protect information and manage accounts on behalf of the deceased estate.

Failing to secure digital access can make it harder to identify assets, locate records or protect accounts from unauthorised use. Digital account details should be treated as part of the estate records and handled carefully during estate administration.

Mixture of Personal Funds with Estate Money

An executor cannot use estate funds for personal expenses. Using money belonging to the deceased estate for a personal purpose may constitute fraud and expose the executor to civil liability and criminal charges.

A separate estate or trust account should be opened for estate payments and expenses. Keeping estate funds separate from personal money also reduces the risk of accidental intermingling and makes transactions easier to record and explain to beneficiaries.

Inadequate Record Keeping & Debt Management

An executor must keep accurate records of every payment, expense and distribution made on behalf of the deceased estate. These records may need to be provided to beneficiaries and can help answer allegations of misconduct or questions about administration expenses.

The executor must also identify and settle estate debts before distributing assets. Debts can also obstruct probate cases, and an executor who distributes the estate without accounting for liabilities, including tax debts, may be held personally liable for any shortfall.

Procedural Delays & Premature Estate Distribution

Postponement of the Application to Apply for Probate

An executor will usually need to apply for probate within six months of the deceased person’s death. The probate application is made to the Supreme Court of NSW for a grant of probate, which formally appoints the executor to administer the estate under the Will.

The executor should also aim to complete estate administration within about one year of death, known as the “executor’s year”. This period begins on the date of death, not the date probate is granted.

An executor who delays without a valid reason may be removed from the role of personal representative. In addition, a delay that causes financial loss may expose the executor to personal responsibility.

Allocation of Assets Before the Statutory Waiting Period

An executor is obliged to hold estate assets until the required waiting periods have passed, and the estate debts have been addressed. NSW Government guidance states that an executor should not distribute the estate earlier than:

• six months after the date of death; and
• at least 30 days after publishing a Notice of Intended Distribution.

Beneficiary pressure does not remove these responsibilities. An executor may sometimes make an interim distribution, but only where there is enough money left in the estate to meet:

• debts;
• possible claims; and
• the final distributions.

Distributing assets too early can leave the executor personally responsible for unpaid liabilities or claims against the estate.

Improper Handling of Court Requisitions & Taxation Compliance

Court requisitions must be addressed promptly because delays can create unnecessary legal costs and hold up a probate application. 

In Estate of Bernadette Therese Campion [2025] NSWSC 1126 (‘the Campion case‘), requisitions concerned incorrect property street numbers. The Court directed that the summons be amended to seek rectification under Section 27 of the Succession Act 2006 (NSW).

An applicant who disagrees with a requisition may seek review under Part 49, Rule 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (‘Uniform Civil Procedure Rules‘). Taxation and legal compliance issues can delay probate applications as well, including issues involving:

• capital gains tax on property; and
• tax returns for the estate.

Co-Executor Conflicts & Beneficiary Disputes

The Impact of Complex Family Dynamics on Probate

Complex family dynamics can delay probate when blended families or estranged relatives disagree about the deceased person’s estate. A probate lawyer can help:

• mediate conflicts;
• clarify each beneficiary’s position; and
• support communication between the parties without lengthy litigation.

Objective legal advice may help the executor and beneficiaries focus on administering the estate rather than allowing personal disagreements to delay the probate application.

Co-Executor Hostility & Legal Costs

The decision in Gibson v Gibson [2026] NSWSC 894 (‘the Gibson case‘) shows how co-executor conflict can affect probate and estate administration. The plaintiff and defendant were appointed as co-executors, but their relationship broke down. The defendant:

• sent inflammatory correspondence;
• made serious allegations; and
• resisted the appointment of an independent administrator.

The Supreme Court of NSW appointed an independent administrator after finding that the co-executors could not cooperate. The proceedings also involved disagreement about the management and possible rental of estate property. 

The defendant was ordered to pay $48,000 towards the plaintiff’s legal costs because the defendant’s conduct prolonged the proceedings.

Unreasonable Executor Conduct & Personal Liability

Delayed Administration & Rent-Free Occupation

In Vlahos v Vlahos [2025] NSWSC 1612 (‘the Vlahos case‘), the deceased died in February 2022, but probate was not granted to the executor until December 2023. 

The executor remained in the deceased’s property after the will’s 12-month rent-free period ended, without:

• paying an occupation fee; or
• taking steps to generate income for the beneficiaries.

The Supreme Court of NSW applied the “executor’s year” rule and held that the executor was expected to obtain probate in time to sell or transfer the property after the rent-free period ended.

The property was eventually sold by auction for $1.98 million, after delays and unsuccessful private negotiations.

The Financial Consequences of Ignored Beneficiary Communication

The executor deliberately failed to respond to correspondence from the beneficiary’s lawyer about selling the property and progressing the estate administration. The Court found that this conduct left the beneficiary without information and provoked unnecessary proceedings against the executor.

An executor’s costs are not automatically payable from estate funds. Under Rule 42.25 of the Uniform Civil Procedure Rules, an executor may lose that entitlement where:

• costs were incurred unreasonably; or
• the executor acted mainly for personal benefit.

In the Vlahos case, the Court made no order granting the executor indemnity from the estate, leaving that issue to be considered, if necessary, as part of a later claim.

Conclusion

Careful checking of the Will, complete asset and debt records, separate handling of estate funds, timely court steps and clear communication can help prevent avoidable probate delays in NSW. An executor who overlooks these responsibilities may face disputes, added costs or personal responsibility for losses affecting the deceased estate.

For practical legal advice on the role of executor, probate documents and estate administration concerns, contact Law Bridge’s wills and estate planning lawyers. Contact Law Bridge to request a consultation and receive guidance suited to the circumstances, helping reduce uncertainty and manage the estate with greater confidence.

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