Being appointed as an executor carries important responsibilities for administering a person’s estate after their death. In many cases, this involves applying for probate before assets can be collected, debts settled and inheritance distributed. If an executor delays or refuses to apply for probate, the administration of the estate can come to a standstill and create uncertainty for beneficiaries.
Understanding what can be done when an executor does not apply for probate can help protect the estate and ensure the administration process continues. While some delays may be understandable, prolonged inaction can create practical and financial difficulties that may eventually require formal action.
Does an Executor Have to Apply for Probate?
An executor is not always required to apply for probate. Some smaller estates or assets held jointly may be dealt with without a grant. However, probate will usually be necessary where the deceased owned significant assets in their sole name, such as property, savings or investments.
Where probate is required, the executor named in the will has authority to apply for the grant and administer the estate. They are expected to act responsibly and without unnecessary delay.
An executor’s responsibilities extend beyond obtaining probate. They may also need to identify and value the deceased’s assets, establish any outstanding debts, deal with inheritance tax matters and ultimately distribute the estate in accordance with the terms of the will.
Why Might an Executor Delay Applying?
There are several reasons why an executor may not apply for probate immediately. They may be dealing with grief, struggling to identify or value assets, waiting for information about tax liabilities or finding the responsibilities of the role difficult to manage.
Some estates are more complicated than others and additional time may legitimately be required where there are properties, investments, business interests or difficult tax issues to address.
In other cases, an executor may simply refuse to act or fail to communicate with beneficiaries. The appropriate response will depend on the reasons for the delay and whether the administration of the estate is being affected.
What Problems Can a Delay Cause?
Where probate is required, failing to obtain the grant can prevent important parts of the estate administration from progressing. For example, property may be unable to be sold or transferred and financial institutions may refuse to release funds.
Delays can also create uncertainty for beneficiaries who are waiting to receive their inheritance. In some circumstances, ongoing expenses relating to property or other assets may continue to arise while the estate remains unresolved.
Although administering an estate can take time, an executor should continue to make reasonable progress and deal with their responsibilities appropriately.
What Can Beneficiaries Do?
If an executor is delaying the probate application, beneficiaries should usually begin by requesting an explanation and asking for an update on the administration process. Executors should keep beneficiaries reasonably informed and ensure that the estate is managed appropriately.
It may be that there is a genuine reason for the delay and that further information or valuations are still being obtained. Establishing the position can therefore help determine whether further action is necessary.
Where an executor continues to take no action, formal legal steps may be available. A beneficiary or another interested person may be able to use a citation procedure requiring the executor to take steps in relation to the grant or explain their intentions.
What Is a Citation?
A citation is a formal procedure that may be used where an executor has failed to take appropriate steps in relation to probate. Depending on the circumstances, a citation can require the executor to take steps to obtain the grant or formally address their position in relation to the administration of the estate.
If the executor continues to fail to act after a citation has been issued, further steps may be available to enable another suitable person to apply for authority to administer the estate.
The appropriate procedure will depend on the circumstances, so legal advice can be particularly important before formal action is taken.
Can an Executor Be Removed?
In more serious cases, it may be possible to ask the court to remove or replace an executor. This is generally considered where continued inaction, misconduct or conflict is preventing the estate from being properly administered.
Removing an executor is a significant step and will not usually be ordered simply because the administration is taking longer than beneficiaries would like. The court will consider the interests of the estate and its beneficiaries before deciding whether removal is appropriate.
Where removal is ordered, another suitable person may be appointed so that the administration can continue and the estate can ultimately be distributed.
Key Considerations
Delays in applying for probate can prevent assets from being managed and beneficiaries from receiving their inheritance. While some estates legitimately take time to administer, executors are expected to carry out their responsibilities properly and avoid unnecessary delay.
Communication is often an important first step where concerns arise. However, where an executor repeatedly fails to act or the estate is at risk, seeking early legal advice can help determine whether formal action is required and what options are available.
We Can Help
Dealing with an executor who is unwilling or unable to progress an estate can be frustrating and complex. Our private client specialists can advise beneficiaries and executors on their rights and responsibilities and help take appropriate steps to move the administration forward.
If you are concerned that an executor has not applied for probate or is delaying the administration of an estate, contact us to discuss your options.
