Avoiding common delays in obtaining probate
Probate is a term which is loosely used to cover the administration of an estate, and it has a reputation for being a lengthy process. The administration includes a number of key stages, including obtaining the grant of probate, paying out to beneficiaries, and finalising the estate. Complications and delays can arise in each of these stages, which mean the probate process can prove lengthier than many executors anticipate.
‘Liaising with financial institutions, beneficiaries, and other parties takes time,’ says Dagmara Kulczykowska, a Partner in the Private Client Services team with Geoffrey Leaver Solicitors in Milton Keynes ‘The speed at which others respond is out of an executor’s control, but some common causes of delay can be anticipated and planned for in advance.’
Problems with the Will
It may be that you are certain the person left a will, but you are unable to find it. Or perhaps you have only found a copy of the will or an unsigned draft. Professionally drafted wills that have been prepared with the help of a solicitor are typically stored at the solicitor’s offices, therefore reducing the likelihood of the original will becoming lost. With the help of a solicitor, not having the original will is not necessarily an insurmountable issue, but it will usually take longer to go through the probate process with only a copy of the original will.
If the will has been located, this could be invalid, in whole or in part. An invalid will means the intestacy rules have to be applied and researching the family history takes time. Similarly, if the person simply did not make a will, intestacy rules must instead be followed, and it will naturally take longer to establish these than it does to merely adhere to the terms of a will.
Some wills, particularly homemade wills, can be legally unclear. Interpreting the terms of an unclear will to the agreement of everyone concerned can prove time consuming and can lead to delays that could have been avoided with a professionally drafted will.
The ease with which a valuation can be obtained will depend on the type of asset and the financial institution that you need to deal with. Whilst high street banks are often quick to provide information about basic current and savings accounts, it can be trickier to obtain details from more unusual investment arrangements.
Certain assets, such as artwork, antiques, collectibles or cryptocurrencies will need expert valuations, and it takes time to arrange for experts to view items.
Assets that are held overseas can prove particularly tricky, not least of all because communication is often especially protracted. As other countries have their own probate rules, even once valuations are obtained for overseas assets, withdrawing the funds often requires additional time-consuming steps, such as arranging for documentation to be translated or even reapplying for probate in the country concerned.
When seeking probate valuations from financial institutions, it is important to be as clear as possible about what information is required. Solicitors deal with many estates and are familiar with exactly what details are needed from financial institutions in order to apply for probate, this means that they know precisely what to ask for from the start.
While a single prompt payment is preferable, some assets pay out to the estate long after the date of death, thus preventing the estate from being finalised. This might be the case with some occupational pensions, or with certain complex investment arrangements such as peer-to-peer lending where you need to wait for all the loan parts to be repaid, possibly over a number of years.
Liaising with beneficiaries
Sometimes executors are unable to locate beneficiaries, or they cannot ascertain whether the beneficiary is still alive. While there are steps which can be taken to locate missing beneficiaries, these take significant time.
Even if all the beneficiaries have been located, there is no guarantee that they will be cooperative. Sometimes, a beneficiary may refuse to communicate, or to provide the details an executor needs to pay their share of the estate. Alternatively, there could be factors which prohibit a beneficiary from being able to deal with requests in a timely manner, or at not all.
All the time estate funds remain undistributed, the executors cannot conclude the probate process. As an executor, you must act in the best interests of the beneficiaries and, in some cases, this may mean taking additional steps to ensure their understanding or their ability to be involved in the process.
If you are facing problems locating beneficiaries, or if you are dealing with an awkward beneficiary, a solicitor can help you to navigate the steps needed to track the person down or to negotiate with them.
In some instances, certain people are entitled to claim for a greater inheritance if they feel that they have not been sufficiently provided for from a loved one’s estate. The probate process cannot be finalised until any such disputes are resolved which can take several months, or even years.
If you feel that a dispute is likely, it is best to seek legal advice as early in the process as possible to encourage a swift resolution. Often when someone makes a will, if they are already aware of a likely disagreement between their chosen beneficiaries, the best advice is to appoint professional executors to ensure that any dispute can be dealt with expeditiously.
How can we help?
While some delays cannot be avoided, seeking legal advice early in the process can at least prepare you in advance so that you, and the beneficiaries, are able to anticipate the likely timescales and plan accordingly.
Solicitors are well versed in the complications of overseas assets, continuing payments from certain investment types, missing or difficult beneficiaries, and other factors which may slow progress. Obtaining legal advice at the outset will ensure that you are on the best path to dealing with the entire process as smoothly and swiftly as possible.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.