Solicitor Louise Low, in our Dispute Resolution team,explains what to do if the executor of a will (estate) is slow in paying an inheritance.
Firstly, it is important to recognise that even the most straight forward Estate will take some time to administer. The Executor needs to collect in full details of the deceased’s assets and liabilities, complete the appropriate tax forms, then apply for a grant of probate. Once he has the grant, he needs to deal with the paying the debts of the Estate, and only when these have been paid and all the tax liabilities ascertained, is he in a position to make a distribution to the beneficiaries. Often he will need to sell assets such as the house before distributions can be made.
The administration of a straightforward Estate would normally take six months to a year and very difficult Estates can take longer than that, depending on the issues and whether or not there is any dispute over the Will or the Estate. However one of the biggest delays can be in selling any property in the Estate.
It is often advisable for the Executors to place a notice in the London Gazette, giving creditors two months from the date of publication to notify the Executors of any claim they may have against the Estate. Executors who advertise in this way are protected from personal liability for the debts should a valid claim arise later.
In other cases, it can be sensible for the Executors to make no payment until at least six months after the date of the grant. This is because there is a six month time limit under the Inheritance (Provision for Family and Dependents) Act 1975, which runs from the date of the grant of probate. If a claim were to be brought, it would be far better that the beneficiaries have not received the money rather than being asked to repay the money.
You may also have heard of “the Executor’s year”. This arises in two ways. One of these provides that a personal representative is not bound to distribute the estate before one year after the death. The other provides that gifts of money normally attract interest only after one year from the date of death.
Sometimes problems arise because the Executor does not really know how to deal with the matter properly, and in those circumstances it can often be advisable for the Executor to instruct an independent solicitor to do the work for him. Whilst this will be a cost to the Estate, it is almost certainly far cheaper than seeking to have the Executor removed.
If there is unreasonable delay however you should write to the Executor, pointing out his obligation to keep all beneficiaries updated on the progress of managing the Estate. You can also demand that the Executor provide an “account” of the Estate which should outline how much you are due to receive. If he refuses there is a relatively straightforward process for obtaining a court order that he produces an inventory and an account of his dealings with the estate.
Ultimately, if the Executor is not complying with his obligations, you may be able to have him or her removed as Executor. This is not a straightforward process and involves a costly application to the court. It is important to ensure that you obtain proper legal advice before considering that step as in particular an initial “protocol” letter will need to be sent warning the Executor, before any court application is made. If this step is not taken, then costs might be ordered against you, so expert advice, preferably from a solicitor from a solicitor experienced in this area, should be obtained.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
