Disclaimer: The following information is for general educational purposes only and does not constitute legal or medical advice. End-of-life treatment…
Disclaimer – This article is for general educational purposes only and does not constitute legal advice. If you are an executor-designate, an attorney under an Enduring Power of Attorney, or a family member facing a loved one’s final illness in Queensland, obtain personalised guidance from an experienced succession-law solicitor and the treating medical team.
Learning that you have been named executor in a will is often a distant, abstract notion—until the testator (the person who made the will) becomes gravely ill. Queensland law imposes most formal executor duties after death, yet prudent preparation before the will-maker passes can prevent probate delays, minimise family conflict and preserve estate value.
This guide sets out what a prospective executor can (and sometimes must) do during the testator’s last illness, without overstepping legal boundaries or breaching the testator’s privacy.
Key Ethical and Legal Boundaries
| Obligation | Practical Meaning | Source |
|---|---|---|
| Fiduciary duty begins only on death | You cannot take control of property or bank accounts while the testator is alive unless you also hold an Enduring Power of Attorney. | Re French [1957] Ch 70 |
| Respect testator autonomy | The will-maker may change their will at any time while capacitated. Do not pressure for alterations. | Succession Act 1981 (Qld) ss 7–10 |
| Confidentiality | Information about the will belongs to the testator. Share it only with their consent. | Equity principles |
| Avoid conflict of interest | Decline tasks that might benefit you personally to the detriment of other beneficiaries. | Muschinski v Dodds (1985) 160 CLR 583 |
Tip: Where you also act as attorney under an Enduring Power of Attorney (EPA), keep separate files for EPA actions (while the testator is alive) and executor preparation notes (for after death).
Practical Tasks an Executor Can Tackle Before Death
Locate and secure estate documents
- Ask the testator (or their solicitor) where the original will, deeds, share certificates and insurance policies are stored.
- Confirm whether the will is held in a law firm’s safe-custody packet, a bank box or a fire-proof safe at home.
Obtain a concise asset-and-liability snapshot
- Current bank and share statements
- Real-property title references
- Motor-vehicle registrations, loan balances, credit-card debts
Having an up-to-date schedule accelerates the executor’s statement of assets and liabilities for probate.
Confirm funeral preferences
- The executor controls the funeral—not the beneficiaries—but it is wise to document the testator’s wishes in writing or via prepaid funeral plan.
Review authority overlap: EPA vs executor
| Scenario | EPA Attorney’s Power While Testator Alive | Executor’s Power Before Death |
|---|---|---|
| Pay hospital fees | Yes | No |
| Sell investment property to fund care | Yes (if authorised) | No |
| Decide burial or cremation | No | May record wishes but power starts only on death |
Arrange capacity assessment if will updates are likely
- Engage the treating GP or a geriatrician to document capacity contemporaneously if the testator wishes to revise their will or EPA.
- Detailed medical notes are invaluable if changes are later challenged for lack of testamentary capacity.[1]
Build a communication plan
- Collect contact details for all residuary beneficiaries and specific legatees.
- Politely set expectations: explain that probate in Queensland usually takes 3–6 months if uncontested.
House and asset maintenance
- If the testator’s home will be vacant, organise insurance reviews, mail redirection and garden upkeep (with their consent).
- Keep receipts; these expenses may be reimbursed from the estate.
What an Executor Should Not Do Before Death
- Take possession of funds (unless you are also EPA attorney with express authority).
- Distribute sentimental items early—doing so can be seen as intermeddling.
- Announce inheritances to beneficiaries; the testator may still change their mind.
- Refuse to act as attorney or executor without formal renunciation—inaction can jeopardise asset protection or EPA duties.
Fast-Track Checklist for the Final Days
| Action | Reason | Evidence/Tool |
|---|---|---|
| Verify certified copy of will is on hospital file | Clinicians may ask for funeral or organ-donation directives. | Certified copy, not original |
| Collect at least 5 original death-certificate applications | Each bank, insurer, and Titles Queensland needs one. | Births, Deaths & Marriages Qld forms |
| Draft Notice of Intention to Apply text | Saves a week post-death; publish online Gazette quickly. | UCPR r 598 template |
| Pre-fill probate affidavit (leave dates blank) | Early drafting reduces requisition risk. | Supreme Court Form 104 |
| Engage funeral director on standby | Immediate action avoids last-minute premiums. | Written quote & service preferences |
Executor Preparation Timeline
| Stage | Typical Time Frame | Primary Executor Task |
|---|---|---|
| Testator diagnosed with terminal illness | Months to weeks | Locate will, gather asset summary, discuss funeral wishes. |
| Capacity begins to decline | Weeks | Confirm EPA coverage, consider capacity assessment, secure valuables. |
| Final hospital admission | Days | Place certified will copy on file, organise house security, prepare Notice of Intention draft. |
| Within 24 h of death | Day 1 | Order death certificates, secure original will, instruct funeral director. |
| Day 2-3 | Publish Notice, finalise probate documents, notify immediate family. |
Potential Pitfalls and How to Avoid Them
- Family conflict over pre-death asset sales
If you are also attorney, obtain written valuations and keep beneficiaries informed to avoid allegations of financial abuse. - Lost original will
Photocopies require an affidavit of lost will and can delay probate. Use a safe-custody search request with the Queensland Law Society. - Executor burnout
Consider professional house-sitters, accountants or a co-executor to share workload, especially during prolonged illnesses.
Frequently Asked Questions
Do I have authority to access the testator’s bank accounts before death?
Only if you are also appointed under an EPA for financial matters and the EPA is activated.[2]
What if the testator wants to change their will but is bedridden?
A solicitor can attend the bedside. Ensure two independent witnesses are present and organise a doctor’s capacity certificate the same day.
Can I refuse to act as executor at the last minute?
Yes—file a Renunciation of Probate (Form 116) before you intermeddle. If you have already acted, the court may require formal discharge.
Should I register a caveat over the property pre-death?
Generally no. Title offices will not accept a caveat based solely on executor expectation; wait until probate is granted.
Key Takeaways
- An executor’s formal powers commence on death, but prudent preparation during the testator’s final illness reduces probate delays.
- Respect autonomy: the testator can still alter their estate plan while capacitated.
- Locate documents, update asset schedules, arrange capacity evidence, and draft probate paperwork early.
- Keep meticulous records—especially if you also act under an EPA—to avoid later challenges of conflict or intermeddling.
Sources / Citations
[1] Banks v Goodfellow (1870) LR 5 QB 549 – testamentary capacity test.[2] Powers of Attorney Act 1998 (Qld) ss 29–30 – attorney authority before death.
[3] Succession Act 1981 (Qld) ss 52–54 – executor powers after death.
[4] Uniform Civil Procedure Rules 1999 (Qld) rr 598–603 – probate notice and filing requirements.
[5] Queensland Law Society Safe Custody Will Register – search protocol (2025).