Factors that can delay Probate
One of the questions we get asked most often as a probate broker is how long does probate take? Unfortunately, there is no black and white answer to this, every estate is different and will face different complications. Probate can be a long and complicated process but there are a few complications that pop up more often than others. We have put together a list of the most common factors that delay probate.
Problems with the Will
Locating the Will
A missing Will can delay probate right from the start of the estate administration. If there is suspicion that a Will had been written, appropriate effort should be made to locate it before the Rules of Intestacy are followed in its place. A will states who has been named the executor and has the right to handle the estates assets, as well as who is to benefit from the estate.
When a Will cannot be found, The Laws of Intestacy will come into force and designate who has the right to administer the estate and inherit it but this may not reflect the deceased’s wishes. If after reasonable effort has been made to locate the Will it does not appear, the next of Kin would be entitled to administer the estate and apply for probate. If the administrators would like to change how the estate is to be distributed to honour the wishes in the missing Will, or the verbal wishes of the deceased this can be done using a Deed of Variation but this does add an additional phase to the probate process, which can increase the time it takes for the estate to be administered.
Using a copy of the Will
If a copy of the Will has been found but the original has disappeared, after reasonable effort has been made to locate the original, the copy may be able to be used in its place. In order to use a copy of the Will the consent of those who are negatively affected (those who would have inherited via the Rules of Intestacy) is needed as well as appropriate evidence supporting the copy of the Will.
Searching for a missing Will and collecting evidence to support a copy can take some time and will delay the starting of estate administration and probate application.
Validity of the Will
If a Will were to be deemed invalid the deceased’s estate would be treated as Intestate. This mean their estate will be treated as if there was no Will at all and will be distributed according to the laws of intestacy. There a few obvious discrepancies that will immediately render a Will invalid.
- The testator was under 18
- The Will was not witnessed
- The Will was not signed by the testator
There are also a few other factors that will invalidate a Will, but evidence must be provided to prove that the Will was made under these circumstances.
- The testator was not of sound mind
- The testator did not make it voluntarily
Disagreements or disputes about the validity of a Will can often take some time to be resolved. Until any question of the validity of the Will have been settled the administration of the estate cannot be started.
No executor named in the Will
Although failing to name an executor in the Will does not immediately render the Will invalid, it does raise the question of how such an important aspect of a Will was missed and what other discrepancies there may be. It would not be unreasonable for someone to have concerns about the validity of the Will, answering these questions and appointing an administrator can delay probate being applied for.
Contesting/questioning of the legitimacy of the Will
When 2 parties cannot agree on the validity of the Will or the contents of the Will to the point of contestation or a caveat being place on the estate, the administration is put on hold until the dispute is resolved. This can be through mediation or through the courts; these types of disputes can often take months to resolve, in the worst cases, years.
Problems with Executors
If a Will names an executor that the beneficiaries or next of kin were not expecting it can delay the initial process of applying for probate. If the executor is not easily locatable, reasonable effort must be made to find them before an executor can be removed and another person can take over the role.
Once the named executor has been informed of their appointment, it may also take some time for them to decide whether they wish to act or would rather renounce. There is nothing legally forcing a named executor to renounce their position, but if their appointment was unexpected in the first place this can cause disagreements or disputes which can slow down the process.
Solicitor named as executor
If a solicitor is named as an executor, either solely or jointly, and their fellow executors or beneficiaries do not wish for them to administer the estate they can request for the solicitor to renounce their position. As with any named executor there are no laws forcing them to renounce and it can take weeks, sometimes months, to get their agreement, if they agree at all. This means that any estate administration is put on hold until there is a resolution.
Death of executor before probate
If an executor was to pass away during the administration of an estate, it would be down to the executor named in their Will to take over the completion of the administration. This is known as the Chain of Representation. If there is no Will the position will passed to the next person entitled under the laws of intestacy.
Arranging for the replacement executor can take some time and there is normally a delay in the administration until the appropriate arrangements can be made, as well as time to grieve and arrange the funeral. If the executorship is passed through the chain of representation, the new executor will be dealing with 2 estates rather than one. Some time should be allowed for them to get to grips with the uncompleted estate as well as starting the administration of the estate they were named executor off. All of these factors can delay probate.
A reluctant or difficult executor can cause estate administration to be a stressful and drawn-out process. There are many ways in which an executor can be difficult which can result in probate taking longer to achieve however that does not always mean they are not fulfilling their role or abiding by the Law. There is little that can be done to encourage an executor to work faster, and they must be allowed a year before the beneficiaries have grounds to start chasing for their inheritance.
Having a complaint against executor does not necessarily mean that there are grounds to remove an executor. If there is belief that an executor of a will is not fulling their role there must be evidence to remove an executor if not fit.
Executors living abroad
Although the process changes very little for executors that are not living in England and Wales, you should expect the process to take slightly longer. There are certain documents that need to be signed and a scan will not be sufficient. It can take longer to administer the estate as paperwork has to be sent back and forth between countries. It can also be harder to organise probate if there is a time difference.
Problems with Beneficiaries
Rules of Intestacy
More time should be allowed when there is no Wills and the Rules of Intestacy are applied to the estate. This adds an additional aspect to the administration as a family tree must be created and evidence provided to prove the next of kin’s entitlement as well as the time it takes to track them down. When the next of Kin is a spouse or children this is less of a complicating factor than if the next of kin is a more distant relation.
An executor must make reasonable effort to locate beneficiaries that have been named in the Will or by the Laws of Intestacy. Sometimes beneficiaries seem to have completely disappeared this can cause a lot of time and effort to be exerted discovering what has happened to them. Only after sufficient effort has been made can the distribution of the estate take place.
Beneficiaries that are in disputes with one another or with the executor can cause the administration to take weeks, months and in the worse cases years to resolve. Sometimes a lot of mediation is required before decisions can be made, which dramatically increases the time it takes to complete the administration.
Over eager or interested beneficiaries can also sometimes become a hindrance to the executor as a lot of effort is put in to placating the beneficiary and not into the administration.
Problems with Administration
Third party delays
One of the most common issues to delay probate and the estate administration is third parties. There are parts of estate administration that are unfortunately out of the executor’s hands and are reliant on other people doing their bit in a timely manner. Most companies have a set procedure that they must follow when handling a deceased person’s assets and it can take a couple days for them to process a request. However, executors should keep on top of a company that is taking a unreasonable amount of time to respond.
Third party delays are more common for estates where there is inheritance tax to pay as there tend to be more third parties involved and a lot more detail is required than on estates where there is no Inheritance Tax.
Paying Inheritance Tax
When an estate is liable for inheritance tax, probate is most likely going to take longer. This is due to there being a lot more information and calculations involved in valuing the estate. This stage of the process should not be rushed as it is more likely for a mistake to be made which in turn could take longer to correct.
There is also more involvement from HMRC which can result in a lot of back and forth or queries about the values given in the Inheritance tax forms.
In order for a grant of probate to be issued some or all of the inheritance tax must be paid some time must be allowed for this to be arranged. Depending on the estate, Inheritance tax can be paid in a couple different ways; some take longer to action than others and this will affect how long it takes for probate to be granted.
If you are carrying out a DIY application you will need to pay inheritance tax prior to receiving a grant of probate. This will add time to your application as a private applicant is not able to give an undertaking in the same way a solicitor can.
DIY probate applications tend to take longer than an application made by a professional. This is usually because a DIY applicant does not have the same amount of knowledge and experience as a solicitor about the probate process. This results in it taking longer to achieve the same results as more research and checking will take place. It is also common for DIY applicants to be applying for probate in their spare time, working around their day to day lives in comparison to using a solicitor for probate who will be working on the estate continuously.
In addition, the district valuer may want to see more evidence that you have carried out your role in valuing the estate correctly. District valuers will often pay closer attention to personal applications as they are not covered by rules laid down by the Solicitors Regulation Authority.
Access to information
Having to track down information about the deceased’s assets will add time to the process. When there is very little information about bank accounts, shares or property there is a lot more running around involved in collecting all the relevant information needed to complete the application forms. You are also more reliant on third parties to fill the gaps of missing information, tracking everything down can take time and a lot of work.
Not having access to the deceased’s paperwork or financial information is one of the most common reasons for a delay in an application of probate.
If there are debts on an estate it is standard practice to place an advertisement in the London gazette to be made. This allows potential debtors 2 months to claim what they are owed. You will have to factor this 2-month waiting period into your timescale otherwise it can cause an unnecessary delay to probate.
Dealing with Charities
Having a charity named as a beneficiary can be an added complication for an executor. Charities are not handled like other beneficiaries; they can sometimes require more documentation for their records which can delay the residual beneficiaries receiving their inheritance. Some charities will ask to see a statement of the estate to ensure they are receiving the correct gift.
Charities named as residual beneficiaries may also employ their own solicitor to check the estates accounts and calculations, completing the estate administration can depend on how long it takes their solicitor to review the accounts.