Problems With Executors of an Estate – What Can Be Done?
Partner Philip D’Arcy, head of Blandy & Blandy LLP solicitors’ Dispute Resolution team, explains what can be done if you experience a problem or are facing a dispute because the executor of an estate is not complying with their obligations.
It is important to remember that even the most straightforward estate will take some time to administer following a death. The executors need to obtain full details of the deceased’s assets and liabilities, to complete the necessary tax forms and then to apply for a grant of probate. Once they have received the grant, they need to deal with collecting in and selling the assets and paying the estate’s debts and liabilities. Only when these have been settled, and all of the tax liabilities established, are they in a position to make any distributions to the named beneficiaries.
The administration of a straightforward estate will typically between six months and a year, although the main factor is likely to be if there is a property to be sold as this can result in delays in realising the estate’s assets. Complex estates with multiple properties can of course take much longer to administer. Where there is a dispute over the will or the estate, distributions are very unlikely before those issues have been fully resolved.
It is generally advisable for the executor 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.
It may also be a good idea for the executors to make no distributions for at least six months from when they grant is received. This is because there is a six month limit for claims under the Inheritance (Provision for Family and Dependents) Act 1975, which runs from the date of the grant of probate.
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 after one year from the date of death.
Specific legacies need to be dealt with before payments are made to the residuary beneficiaries
Sometimes problems arise because the executor does not really know how to deal with matters. In those circumstances it is often advisable for the executor to instruct an independent solicitor. Whilst this will be a cost to the estate, it is almost certainly far cheaper than seeking to have the executor removed.
Where the administration is delayed for a valid reason the executors may be willing to consider making interim distributions to the residuary beneficiaries on account of their entitlement. Executors are encouraged to adopt a cautious approach and to ensure that they retain sufficient funds to deal with any unexpected issues and any costs.
If there is unreasonable delay, you should write to the executor, pointing out his/her 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/she refuses, there is a relatively straightforward process for obtaining a court order that the executor produces an inventory and an account of their dealings with the estate.
If the executor is not complying with his/her obligations, you may be able to have him or her removed and replaced, usually by an independent solicitor. 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 undertaken, costs may be ordered against you, so expert advice, preferably from a specialist solicitor, experienced in this area, should be sought.
Partner Philip D’Arcy is a member of the Association of Contentious Probate and Trusts Specialists (ACTAPS) and has extensive experience in advising on will and inheritance related disputes.