21 Jun Delays in granting Probate
Delays in granting probate
Delays can arise for many different reasons. Some of them are out of control of the Executors or Administrators. An example of this is caused by waiting on further information from asset or liability holders.
There are also delays caused when joint executors disagree on decisions that need to be made for an estate. These can include disagreeing on how property should be sold, by private treaty or public auction or whether to give items to beneficiaries instead of selling them and distributing the funds.
Delays in granting probate can also be caused by legislation time limits on claims. For example there is a 6 month period after probate is granted within which a claim for part of the estate can be made by a creditor or a dependant of the deceased. During this period it is recommended that executors hold the funds as they can otherwise be held personally liable for any claims made during this period if they have already distributed the funds but a claim is made. This can often be a difficult time for the beneficiaries as they know the money has been collected in ready for distribution, but they cannot access it for 6 months. In situations where there is really no potential claim that can be made by any eligible claimant, then the executor may wish to distribute prior to 6 months after a grant of probate is obtained.
What can be done to avoid delays in granting probate – start with the Will
Prevention is better than cure they say. So when writing your will, if you are appointing joint executors, make sure they are people who will work well together and are unlikely to have disputes throughout the process.
It is also best to have executors who live near each other so they are not travelling for long periods of time every time something needs to be signed. Probate cannot be granted unless all joint executors sign all the necessary paperwork in person.
If you are making a will, it is a good idea to tell executors that you have appointed them as your executor in your will. This will ensure that when you pass away they know that they should be looking into their responsibilities from the start, or if they don’t like the idea of the responsibility you will know to change your will while you can.
Keep your will copy in a safe place but easy for the executor to locate. Delays are often caused in trying to find the will and then trying to find the executor of the will. If you don’t want to give your executor a complete copy of the will, at least give them a copy of the cover page which has the details of your lawyers who will be holding your original will.
What can be done to avoid delays after will maker has passed away?
Once a person has passed away avoiding delays falls onto the executors’ shoulders. It is best if they can contact a lawyer for assistance from the outset as they receive the death certificate. The death certificate is required to establish a right to apply for probate and recognition by asset and liability holders to communicate with executors and their lawyers.
For the executors it is important that they start the application for probate as soon as is reasonably possible after someone passes away and get legal advice first even if the executors are thinking of handling the matter themselves. This will avoid unnecessary steps being taken by the executor which could waste time and money.
What can be done if there are still delays with granting probate?
Any beneficiary or other executor can apply to the Supreme Court to have an executor removed if they are causing undue delays. This will always be examined on the circumstances of the specific case, but an executor who “sits idly by for an inordinate period of time without good cause” will be removed by the courts.
What is the time frame to apply for a grant of probate?
As an executor you can apply for probate anytime however there are consequences if you leave it too late including delaying sale of property where it is required by the will.
In terms of what is a reasonable amount of time to obtain a probate grant, call in all assets, pay liabilities then distribute surplus to beneficiaries, it has been determined that up to 1 year from the date of death is not unreasonable. Probate usually takes a lot less than 1 year and usually funds can be distributed well before then with some estates within a couple of months.
If after 1 year, if probate hasn’t been finalised and funds distributed the executors, there is a case to argue that beneficiaries should be receiving interest on the assets they are entitled to. After 1 year from the date of death the beneficiaries can request up to 8% interest on their share of the estate. However in resolving any such disputes the courts will look carefully into all factors causing delay, including whether the beneficiaries contributed to the delays or the delays were completely out of the hands of the executors (if so then they are unlikely to award any interest and may even make an adverse costs order). They are also likely to award less than 8% if the executor has invested the funds and is getting some interest but on a lower interest rate.
It is important that probate is managed efficiently and handled properly from the start which is why it is always best to contact a lawyer prior to starting the probate process to ensure the correct procedures to take and ensure you are doing everything correctly.
If you would like to know more about probate, take advantage of our free half hour legal consults. They can be done in person or via Skype or telephone conference.