When can an executor safely distribute an estate? NSW, Victoria and Queensland compared

Probate has been granted. The house is sold, the accounts are closed, the money is sitting in the estate account. And the beneficiaries — reasonably enough — want to know what the hold-up is.

This is the moment where an executor carries the most personal risk in the whole job. Distribute too early to the wrong people and you can be personally liable to a claimant who turns up afterwards. Not the estate. You.

Every Australian state and territory gives executors a statutory protection for exactly this situation, and every one of them draws the line in a different place. This article sets out three — New South Wales, Victoria and Queensland — because the differences between them are large enough to be genuinely surprising, and because seeing three side by side is the fastest way to understand that there is no national answer to the question in the title.

If your estate is being administered in South Australia, Western Australia, Tasmania, the ACT or the Northern Territory, the numbers below are not yours. The shape of the problem will be familiar. The periods will not be.

New South Wales: four conditions, all of them, not any of them

Section 92(1) of the Probate and Administration Act 1898 (NSW) lets an executor or administrator distribute the estate's assets among the people entitled, having regard to the claims of beneficiaries, creditors and others of which the executor has notice at the time of distribution — if four things are true:

• the assets are distributed at least 6 months after the death; and
• the executor has given notice, in the form approved under section 17 of the Civil Procedure Act 2005, that they intend to distribute the assets after a specified time; and
• the time specified in that notice is not less than 30 days after the notice is given; and
• that specified time has expired.

They are cumulative. Waiting six months is not enough on its own. Publishing a notice is not enough on its own. This is where executors most often go wrong — they do one of the four, or two, and believe they are covered (Probate and Administration Act 1898 (NSW) s.92, https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1898-013).

What the NSW protection actually covers — and the word that limits it

Section 92(2) is the payoff, and it deserves quoting rather than paraphrasing. An executor who distributes in accordance with subsection (1) is not liable in respect of those assets to any person who has a claim in respect of them —

unless the executor or administrator had notice of the claim at the time of the distribution

— or the distribution was not made in the circumstances described in certain provisions of the Succession Act 2006 dealing with rectified wills, sharing between spouses, distribution orders, and Indigenous persons' estates.

So the protection is real, and it is specific. It protects you from the claim you could not have known about. It does not protect you from a claim sitting in your inbox. An executor who has received a letter from a disappointed relative, publishes the notice anyway, and distributes on schedule has not bought themselves anything at all in respect of that claim.

Section 92 is insurance against the unknown claimant, not a clearance certificate.

The trap inside the word "notice"

There is a category of claim a NSW executor is treated as knowing about whether they know about it or not, and it is easy to miss because it sits in a subsection most summaries skip.

Section 92(3) provides that an executor is deemed to have notice of the claim of any person whose entitlement to the assets would have become apparent if the executor had applied for and obtained a certificate under section 50 of the Births, Deaths and Marriages Registration Act 1995. In plain terms: a child of the deceased whose existence a parentage search would have revealed is not an unknown claimant. The executor is treated as having been on notice, and section 92(2) then does nothing for them in respect of that claim.

This matters more often than it sounds. Second families, children from an earlier relationship, and children the rest of the family knew about but the executor did not are exactly the circumstances in which an executor believes they have satisfied every condition and distributed safely.

Before you panic about six months: the maintenance carve-out

If a surviving spouse or dependent household is reading this and wondering how they are meant to live in the meantime, there is an express answer, and it is more generous than the six-month framing suggests.

Section 92A applies where a survivor was wholly or substantially dependent on the deceased at the date of death and will take part or all of the estate if they survive the deceased by 30 days, or by whatever survivorship period the will specifies. Where it applies, the executor may distribute an adequate amount for the proper maintenance, support or education of that survivor at any time after the death — expressly including within the 30 days or the will's specified period. The executor is not liable for such a distribution made in good faith, and the amount is then deducted from whatever share the survivor ultimately takes.

So the six months in section 92(1) is not a freeze on the whole estate. It is the condition for the general protection on a general distribution. A dependent household should not be sitting in the dark for half a year on the assumption that nothing can move.

The other NSW clock: family provision runs for twelve months

Here is the part that changes the whole calculation, and it lives in a different Act.

Under section 58(2) of the Succession Act 2006 (NSW), an application for a family provision order must be made not later than 12 months after the date of the death — unless the Court orders otherwise on sufficient cause being shown, or the parties to the proceedings consent to the application being made out of time (https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2006-080). An application can be made whether or not administration has been granted.

Set the two side by side and the problem is obvious. A NSW executor can satisfy every one of the four conditions, distribute in month seven or eight, and still be squarely inside the period in which an eligible person can file a family provision application. The statute permits the distribution. It does not stop the clock on the claim.

Whether the section 92 protection helps an executor against a family provision claim specifically is a technical question that runs through the notional estate provisions, and it is not one to resolve from a general article. What can be said plainly is that the two periods are different, that the shorter one is the one the Act lets you rely on, and that this gap is the reason a solicitor will very often tell a NSW executor to wait the full twelve months where a family provision claim is even a possibility. Our article on family provision claims against wills covers who can bring one and what the Court weighs.

Victoria: the same two clocks, deliberately aligned

Victoria has the identical problem and has solved it, which is what makes the comparison worth drawing.

Under section 99(1) of the Administration and Probate Act 1958 (Vic), an application for a family provision order must be made within 6 months after the date of the grant of probate or letters of administration — not the date of death (Version No. 130, as at 22 October 2025, https://www.legislation.vic.gov.au/in-force/acts/administration-and-probate-act-1958). The Court may extend that period, including where the time has already expired.

The executor's protection in section 99A(3) is then geared to the same event. No action lies against a personal representative who distributes after the expiry of 6 months after the grant, provided either they have had no notice of an application, or — where they received a notice of an intention to apply — they have not received written notice that an application was actually made to the Court within 3 months of receiving that notice of intention.

Two features of the Victorian scheme have no New South Wales equivalent and are worth knowing about even if your estate is elsewhere, because they show what the problem looks like when a parliament addresses it head-on.

The first is that a notice of intention has a shelf life. Section 99A(4) requires it to be in writing signed by the eligible person or their legal practitioner, provides that it lapses within 3 months from receipt unless an application has actually been made to the Court, and states that it is incapable of being renewed. A Victorian executor who receives a warning shot in month two and hears nothing further can watch that notice expire. A New South Wales executor who receives the same letter is simply on notice, indefinitely, with no mechanism to make it lapse.

The second is that distribution itself closes a door. Section 99(3) requires an application to extend the family provision period to be made before the final distribution of the estate, and section 99(4) provides that an extension application, and any order on it, does not disturb or affect distributions already made. In Victoria, completing the distribution has a legal consequence for late claimants. In New South Wales it does not.

Queensland: six months, then nine if someone speaks up

Queensland puts both halves in one Act and makes the executor's waiting period depend on whether anyone has actually raised a claim.

The limitation period comes first. Under section 41(8) of the Succession Act 1981 (Qld), unless the court otherwise directs, no family provision application will be heard unless proceedings are instituted within 9 months after the death (https://www.legislation.qld.gov.au/view/whole/html/inforce/current/act-1981-069).

Section 44(3) then gives the personal representative a two-tier protection. No action lies for a distribution properly made not earlier than 6 months after the death where the representative has had no notice of any application or intended application. But where such a notice has been received, the safe point moves out to not earlier than 9 months after the death — and even then the protection does not apply if the representative receives written notice that the application has been commenced, or is served with a copy of it.

As in Victoria, notice has to be real: section 44(5) requires it to be in writing signed by the applicant or the applicant's solicitor. A remark at the funeral is not a section 44 notice, though an executor would still be unwise to ignore one.

Queensland also gives an executor two routes that New South Wales does not put in the same section. Section 44(1) protects a distribution properly made for the maintenance or support of a spouse or dependent child whether or not the representative had notice of an application, and section 44(2) protects a distribution made after a potential claimant of full legal capacity has notified the representative in writing that they consent to it or do not intend to apply. That written release is a practical tool, and it has no direct counterpart in the New South Wales protection.

The three side by side

New South Wales is the outlier. In Victoria and Queensland the protection and the claim window are geared to each other by design. In New South Wales they are set by two different Acts, measured from the same event, and they do not meet.

Worked strategy examples

Margaret, 71, executor of her late brother's New South Wales estate. Her brother died in January. Margaret obtained probate in April, sold the flat, and by August had roughly $610,000 sitting in the estate account with two adult nieces waiting. She has published the approved-form notice, specified 45 days in it, and that time has expired. All four conditions in section 92(1) are satisfied, and she has had no letter or call from anyone. The statute permits her to distribute now, in month seven. But the family provision window under section 58(2) runs to 12 months from death — January next year — and her brother had a stepson he had not spoken to in a decade. On these facts, waiting the full twelve months is generally the rational course, because the protection Margaret has earned covers claims she had no notice of, and the exposure she is worried about is the claim nobody has made yet. It is also worth her asking a solicitor whether a parentage search is warranted, given section 92(3) can deem her to have notice of a child she has never heard of.

Greg, 66, executor of his mother's Victorian estate. The grant issued in February. In April, a cousin's solicitor sent Greg a signed written notice of an intention to apply for a family provision order. Nothing followed it. By September — seven months after the grant — Greg has received no written notice that any application was actually made to the Court. Under section 99A(4) the notice of intention lapsed three months after he received it, in July, and cannot be renewed; and section 99A(3) protects a distribution made after the expiry of six months from the grant where no application has been notified. On these facts Greg is in a materially stronger position than Margaret, on a shorter timetable, despite having actually received a warning that she never did. That is not a difference in their circumstances. It is a difference in which state their parent died in. Greg should still have a solicitor confirm the notice lapsed rather than assume it, because the whole protection turns on that point.

If someone has already made a claim you dispute (NSW)

Section 93 of the Probate and Administration Act gives a NSW executor a tool for this. Where the section 92(1) notices have been published and a claim is then submitted which the executor disputes, the executor may serve a notice on the claimant calling on them to commence proceedings within 3 months of service and to prosecute the claim. If after that three months the claimant does not satisfy the Court that they are prosecuting it, the Court may make an order barring the claim against the executor, subject to any conditions it thinks just and equitable, or make such other order as it considers appropriate.

There is an extra step available where the executor is the NSW Trustee or a trustee company. Under section 93(3) and (4), if the claimant has not commenced proceedings within that three months, a further notice may be served giving 2 months, after which — if no court process is served — the claim is barred and becomes irrecoverable, and the estate may be distributed without regard to it. No court order is required for that. If your estate is being administered by a trustee company, this is worth knowing exists; if you are a private executor, it is worth knowing that it is not available to you.

What to ask your solicitor

Six questions, in roughly this order:

1. Which state's law governs this estate, and what are the two periods there — the protection period and the family provision window?
2. Have all the conditions been met, and can you show me the notice and its specified date?
3. Do I have notice of any claim right now? Anything in writing, anything said at the funeral, anything I have been told about a relative who feels hard done by — and is there anyone I might be deemed to have notice of?
4. Is a family provision claim realistically possible here? If it is, should I be waiting longer than the statutory minimum?
5. Can maintenance distributions be made in the meantime to anyone who needs them?
6. If a claim has been raised but not pursued, has it lapsed, or should we be serving a notice to force it on or have it barred?

For the wider job around this decision see what being an executor actually involves, and for how you got here, the probate process and deceased estate administration. Where the estate is small enough that a grant may not be needed at all, see do you always need probate, and for what the estate owes, debts when you die. If you are writing the will rather than administering one, choosing an executor is worth reading with this article in mind — you are asking someone to carry this for the better part of a year.

The point

Each of these three parliaments has given executors a genuine protection, and each is narrower than its reputation. In New South Wales, four cumulative conditions produce immunity from claims you had no notice of — and there is a class of claimant you are deemed to know about whether you do or not. In Victoria and Queensland the protection is expressly geared to the family provision limitation period, so the executor who waits out the clock has waited out both.

New South Wales is the one where they do not line up. The protection matures at six months plus thirty days; the window runs to twelve. That is not a reason to panic, but it is the reason NSW executors are told to be slow, and it is worth being able to explain to a beneficiary who thinks you are dragging your feet. You are not being cautious for the sake of it. You are personally on the hook, and the statute only covers part of the exposure.

Sources

• Probate and Administration Act 1898 (NSW) — ss.92, 92A, 93
• Succession Act 2006 (NSW) — s.58
• Administration and Probate Act 1958 (Vic) — ss.99, 99A
• Succession Act 1981 (Qld) — ss.41, 44