A common theme in Executor Disputes is delay. This can occur at the outset – the first task of an executor is to obtain authority to administer the estate. This authority is provided through a formal document called a Grant and it is not uncommon to find cases where an executor delays in submitting the papers needed to obtain a Grant. Delay can also occur once a Grant has been issued.
Beneficiaries should understand that there is no time limit within which an executor must complete the administration process. There is the concept of the ‘executor’s year’ (under which an executor is not bound to distribute an estate within one year of death) but this does not mean a Court will consider an executor to have delayed if he or she does not distribute an estate immediately after this period has elapsed.
Each estate will contain different asset types and values and owe different levels of debt. If an executor can show they have acted honestly and with due diligence, a Court is unlikely to intervene.
In our experience, in most cases, it is reasonable to expect an executor to have applied for the Grant within 6 months of the date of death and to have completed the administration within 12 month of receiving the Grant. It can take a few months for the Probate Registry to issue the Grant following receipt of the paperwork.
With these general points in mind, beneficiaries should consider any delay in light of all the circumstances. For example:
- If the delay occurs before the Grant is issued, has the executor made it clear that they intend to obtain the Grant?
- Is the executor keeping you informed of progress and the reasons for any delay?
- Has there been repeated periods of delay?
- Is the executor a professional, such as a solicitor, or someone unqualified?
- Does the executor stand to benefit personally from any delay?
- Does delay expose the estate to the risk of sustaining a loss, for example by assets reducing in value?
Whatever the circumstances, if a point has been reached where beneficiaries are concerned about the delay and/or the potential impact of the delay there are steps that can be taken to advance the administration.
If the delay is before a grant has been obtained, notice can be served on the executor requiring them to obtain the grant. If this is not complied with, someone else can apply for the grant instead.
If the delay is after the grant has been issued, an application can be made to Court for directions to advance the administration or, in certain cases, asking for the executor to be replaced.
If executors are experiencing delays, they are well advised to keep beneficiaries informed of these and the steps they are taking to break any deadlock. In our experience, beneficiaries want to be kept updated on developments. In addition, the more an executor proactively keeps beneficiaries informed, the less likely that they will face criticism from the Court.