Executor Duties South Australia: Legal Responsibilities Under the Succession Act 2023

Being named as executor in someone's will is a legal appointment, not an honorary one. In South Australia, the Succession Act 2023 — which commenced 1 January 2025 — significantly strengthened the obligations placed on executors and gave the Supreme Court new powers to hold them personally accountable when those obligations are not met. If you're named as executor of a South Australian estate, here is what the law requires of you.

What an Executor Is Actually Appointed to Do

An executor is responsible for administering the deceased's estate in accordance with the will. That means:

• Locating and securing the original will
• Arranging the funeral (or ratifying arrangements made by family)
• Registering the death with Consumer and Business Services (CBS)
• Identifying, locating, and valuing all estate assets
• Applying for a grant of probate if one is required
• Calling in estate assets (closing bank accounts, selling property, redeeming investments)
• Paying the deceased's debts and liabilities in the correct order of priority
• Lodging the deceased person's final income tax return
• Distributing the remaining assets to beneficiaries in accordance with the will
• Keeping accurate accounts of everything you've done

Executors are not mere administrators. They hold a fiduciary duty to both creditors and beneficiaries — that duty is codified in the Succession Act 2023 and enforceable through the Supreme Court.

The Duty to Act: Section 81

Section 81 of the Succession Act 2023 requires executors to distribute the estate "as soon as practicable." This is not a vague aspiration — it is a statutory obligation with teeth.

"As soon as practicable" does not mean tomorrow, but it also doesn't mean whenever you get around to it. Courts interpret the phrase by reference to the specific circumstances: the complexity of the estate, whether litigation is pending, whether assets need to be sold in an orderly way, and whether there are genuine reasons for delay (disputed debts, multiple beneficiaries, property that can't be sold quickly).

What falls outside reasonable delay: sitting on an application for six months because it's time-consuming, failing to contact beneficiaries, or holding assets while waiting to see if family dynamics settle down. If you're uncertain about distribution (contested claims, unclear beneficiaries), the correct approach is to apply to the Supreme Court for directions — not to delay indefinitely.

Personal Liability: Section 91

Section 91 of the Succession Act 2023 is the provision most executors don't know about until it's too late.

Under Section 91, any beneficiary or creditor who suffers financial loss because of an executor's failure to perform their duties can apply to the Supreme Court for compensation from the executor personally. Not from the estate — from the executor's own assets.

This liability operates on a three-year limitation period from the date the aggrieved party discovers the failure. So a beneficiary who realizes in 2027 that the executor was sitting on assets throughout 2025 and 2026, causing them to miss an investment opportunity or suffer tax penalties, has until 2030 to bring a claim.

What types of conduct trigger Section 91 claims?

• Unreasonable delay in distributing the estate
• Paying creditors in the wrong order (distributing funds to unsecured creditors before secured ones)
• Making distributions to beneficiaries when there were outstanding creditor claims, leaving insufficient assets to satisfy those claims
• Failing to sell estate assets at a reasonable price (selling for substantially below market)
• Mixing estate funds with your own money
• Failing to file the deceased's final tax return before distributing assets
• Distributing assets in a way that doesn't match the will

Executors are not expected to be perfect. They're expected to act in good faith, reasonably, and without unnecessary delay. But the Act makes it clear that being named executor comes with genuine exposure, not just administrative inconvenience.

The Right to Inspect the Will: Section 48

Under Section 48 of the Succession Act 2023, a broad class of people have a statutory right to inspect the will or receive a copy before a grant is made. This includes:

• Anyone named in the current will or any previous will
• Surviving spouses and domestic partners
• Children and parents
• Anyone who would inherit under the intestacy rules if there were no will

As executor, if someone in these categories asks to see the will, you are legally required to provide access or a copy. Refusing to share the will or pretending you can't locate it can trigger disputes early — and damage your relationship with beneficiaries before administration has even started. Transparency here is both a legal requirement and a practical strategy.

Executor Liability for Insolvent Estates

If the estate's debts exceed its assets, you're dealing with an insolvent estate. This is the highest-risk situation for personal executor liability.

In an insolvent estate, debts must be paid in a strict statutory order of priority:

1. Funeral, testamentary, and administration expenses
2. Secured debts (mortgages over property)
3. Taxes (ATO liabilities)
4. Unsecured debts (credit cards, personal loans, medical bills)

If you distribute assets to beneficiaries before all creditors are paid, and there aren't sufficient funds left to cover those creditors, you can be personally liable for the shortfall. The moment you suspect the estate may be insolvent — debts appear to approach or exceed asset values — stop all distributions and seek legal advice. Attempting to administer an insolvent estate without specialist guidance is one of the clearest paths to personal liability an executor can take.

Handling Competing Claims: Family Provision

The Succession Act 2023 overhauled the framework for family provision claims — applications by people who believe the will failed to make adequate provision for them (Sections 115 and 116).

As executor, if you receive notice of a potential or actual family provision claim, you must not distribute the estate until the claim is resolved. Distributing while a claim is pending can make you personally liable for any amount the court later awards the claimant.

Under Section 116(2), the Supreme Court is now required to treat the wishes of the deceased as the primary, overriding consideration in family provision applications. This significantly limits the court's discretion to rewrite wills on compassionate grounds. Eligibility for claims has also been restricted — grandchildren, stepchildren, parents, and siblings all face higher hurdles than under the previous Inheritance (Family Provision) Act 1972.

If anyone in the family signals they might challenge the will, consult a solicitor before distributing anything.

Renouncing Executorship

If you were named as executor but don't want to act — because you live interstate, because the estate is too complex, or because family dynamics make it impossible — you can renounce before you take any steps to administer the estate. Once you start acting in the role (opening accounts, contacting banks), renunciation becomes much more difficult.

Renunciation is done by completing and filing Form PROB16 with the Probate Registry through CourtSA. Once filed, your co-executor or the next eligible person under the statutory hierarchy can apply to administer the estate.

You cannot renounce and then change your mind. Renunciation is permanent.

Practical Starting Points for SA Executors

The immediate steps after a death in South Australia:

1. Locate the original will (copies are insufficient for CourtSA lodgement without a separate court application)
2. Register the death with CBS and obtain the death certificate
3. Use the Australian Death Notification Service to notify financial institutions simultaneously
4. Make an inventory of all known assets — bank accounts, real estate, superannuation, vehicles, investments
5. Determine whether probate is required (see our guide to when probate is required)
6. If required, begin the CourtSA application no earlier than 28 days after the date of death

The South Australia Probate Process Guide covers the full executor workflow in chronological order — from immediate post-death duties through to final distribution — including the CourtSA compliance requirements, Land Services SA property transmission steps, and the estate accounting obligations that protect you from personal liability under Section 91.

Where Australia Stands Compared to Other Jurisdictions

The Succession Act 2023 places South Australia's executor liability framework among the more rigorous in Australia. Victoria, NSW, and Queensland have broadly similar executor duties through their respective probate legislation, but SA's codification of the Section 91 statutory remedy — with an explicit three-year limitation period — makes the liability exposure cleaner and easier to enforce. In the UK and Canada, executor duties are similarly statutory, though the specific thresholds and procedures differ substantially by jurisdiction.

If the executor named in the will is based in another Australian state or overseas, the same duties apply — South Australian law governs a South Australian estate regardless of where the executor lives.

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