Executor Mistakes to Avoid in the ACT: Common Probate Errors

Most executor errors in the ACT are not caused by dishonesty or negligence. They're caused by not knowing what the court requires until after the requisition arrives. The ACT Supreme Court holds self-represented executors to the same standard as solicitors, and the Probate Registrar will halt your application for mistakes that a law firm would never make because they've seen them hundreds of times.

These are the errors that cause the most damage — and every one of them is preventable.

Mistake 1: Removing staples from the original Will

This is the single most surprising error for most executors. You receive the Will, you want to scan or photocopy it, you remove the staples — and you've potentially just triggered a Supreme Court requisition.

The court treats a Will with staples removed as potentially tampered. The legal presumption is that if staples have been disturbed, a codicil (an amendment document) may have been detached, or pages may have been added or removed. This presumption is serious enough to halt probate.

If you have already removed staples, you need an additional affidavit detailing exactly when and why the staples were removed, by whom, and confirming that no documents were added or removed. This is not a small fix — it's an extra legal document attached to your application.

The rule: Never disturb the staples of the original Will. Scan it flatbed without removing the binding. Take the physical original to a copy shop and ask them to scan it intact.

Mistake 2: Using the net estate value instead of gross

The ACT Supreme Court requires the gross value of the estate in the inventory of property — the total value of all assets before debts are deducted.

Many executors instinctively calculate the net value: assets minus the mortgage, minus credit card debt, minus outstanding bills. This is the financially sensible figure. It is not what the court wants.

Listing the net value triggers a requisition. You'll need to recalculate, amend the inventory, and refile. This adds weeks to the process.

The rule: Add up all assets at their full market value. The mortgage, the credit card debt, the car loan — these are liabilities of the estate, paid during administration, not subtracted from the asset values.

Mistake 3: Missing the alias clause for name discrepancies

The death certificate must match the Will precisely. If the name on the death certificate and the name in the Will don't match exactly, the affidavit must address this discrepancy directly with an alias clause.

Common mismatches:

• Death certificate: "Robert James Smith" / Will: "Bob Smith"
• Death certificate: "Margaret Anne Jones" / Will: "Peg Jones"
• Name hyphenation, middle names present in one and absent in the other
• Spelling variations or anglicised versus formal versions of names

The court won't assume these are the same person unless the affidavit makes the explicit statement: "Robert James Smith, also known as Bob Smith, is one and the same person."

If you miss this, the application is defective and will be requisitioned.

The rule: Before filing, compare the exact wording of the deceased's name on the death certificate against every reference in the Will. If there's any variation, add an alias clause to the affidavit.

Mistake 4: Failing to explain why a substitute executor is applying

If the person named as primary executor in the Will is not the one applying for probate, the affidavit must explain why. Common situations:

• The primary executor has died
• The primary executor is incapacitated
• The primary executor has renounced probate (which requires a formal Form 3.15 filed with the court first)
• The primary executor is overseas and a substitute is named in the Will

The court will not simply accept an application from a substitute executor without explanation. If your affidavit doesn't address this, expect a requisition.

The rule: Read the Will's executor clauses carefully. If you are not the first-named executor, document why you are applying instead.

Mistake 5: Distributing the estate too early

This is not a requisition error — it's a personal liability error. An executor who distributes estate funds before the six-month family provision window closes (from the date probate is granted) can be held personally liable if a successful claim is subsequently made.

Pressure from beneficiaries — "why is this taking so long?" — is real and understandable. But no amount of family pressure changes the legal exposure. If you pay beneficiaries in month four and a family provision claim succeeds in month seven, you personally may need to refund the claimant's award.

The rule: Do not distribute any estate funds until six months after the date probate was granted, and only after publishing a Notice of Intended Distribution and waiting the 30-day notice period.

Mistake 6: Using an Enduring Power of Attorney after death

An Enduring Power of Attorney (EPoA) ceases to have any legal effect the moment the person who granted it dies. This is absolute and immediate.

Continuing to use the deceased's financial accounts or authority under an EPoA after death is not administration — it's unauthorized access to funds. The legal authority transfers to the executor named in the Will, and they can only act after obtaining probate (for non-urgent matters) or using the specific pre-probate pathways for funeral costs and immediate estate security.

If you held an EPoA for the deceased and have used accounts after their death, stop immediately and seek legal advice about the transactions already made.

Mistake 7: Failing to publish the probate notice at the right time

The Notice of Intention to Apply must be published at least 14 days before the probate application is filed — but no more than 3 months before. If you publish and then wait four months before filing, the notice has expired and you must republish and restart the 14-day clock.

This is a common delay in situations where executors are waiting for valuations or documents before filing. The notice publication and the document preparation should happen in parallel, not sequentially.

The rule: Publish the notice as soon as you decide to apply, and file the formal application within 3 months of publication.

The ACT Estate Settlement Guide covers every stage of the probate application in plain English, including the specific affidavit language that prevents the most common requisitions and the step-by-step filing sequence that keeps your application on track.

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