Reasons Why Probate Can be Delayed
04 September 2017
By Probate Solicitor Tim Burt, TEP
At Co-op Legal Services our Probate Solicitors deal with over £1.3 billion in Estates annually. Whilst the administration of most Estates we deal with proceeds as anticipated, the Probate process can be delayed for reasons outside the control of the Executors.
In this article we explain some of the most common reasons for delay in receiving the Grant of Probate from the Probate Registry and steps which can be taken to help avoid or reduce delays.
Issues with the Will
The Probate process is made far easier where there is a professionally written Will which appoints Executors to deal with the Estate and when the location of the Will is known. This can reduce the risk of disputes, particularly from anyone who is unhappy with the terms of the Will.
Difficulties are often encountered with home-made or DIY Wills. In our experience, these types of Wills can often give rise to suspicion within the family. Often the terms of these Wills are ambiguous which can lead to a dispute and result in legal costs being incurred in dealing with the interpretation of the Will.
Sometimes, the Will does not include a valid appointment of an Executor. More commonly, there is a query as to whether the Will has been validly executed (i.e. correctly signed and witnessed). The formal requirements are very specific in this respect. If so, it is necessary to seek evidence from the witnesses to the Will to seek to prove that it was validly executed.
Sometimes, there is a suspicion that the deceased left a Will but it cannot be found. In this case, a Will search can be carried out and appropriate enquiries made with local Solicitors and banks.
If a copy of a Will but not the original Will can be found, subject to appropriate evidence and consents from those adversely affected, the Probate Registry is likely to allow a copy of the Will to be relied on for obtaining the Grant of Probate. However, it will take time to obtain this evidence from one or both of the witnesses and for the Probate Registry to consider the application. It will also depend on the stance taken by those adversely affected by the Will.
With our Probate Complete Service we take full responsibility for obtaining Grant of Probate and dealing with the Legal, Tax (excl VAT), Property and Estate Administration affairs.
Death of Executor / Personal Representative
Issues can arise when the first Personal Representative dies before taking out the Grant, or after having obtained a Grant. In this case, the starting point is for the Executor of the deceased Executor to step in and take over the role of Executor. This is known as the Chain of Representation.
Where the deceased Personal Representative is appointed under the Rules of Intestacy, the next person entitled to take out a Grant will be in accordance with the order of priority in line with the Rules of Intestacy.
Tracing Family / Heirs to the Estate
If there is no Will, the Rules of Intestacy need to be followed. When the next of kin is the surviving spouse or children, this will be less of an issue.
In some cases, however, tracing the family can be complicated. When relatives have to be traced, their family connection must be evidenced with the relevant certificates, such as birth, marriage or death certificates. Although much of this work will be undertaken after the Grant of Representation has been obtained, it is necessary to obtain the appropriate documents to ensure that the Personal Representative who is seeking to take out the Grant is the person entitled to do so.
Delays with Third Parties
In Estates in which there is no Inheritance Tax to pay and which do not need to be reported to HMRC (most commonly an Estate in which the gross value, including any relevant lifetime gifts, is less than £325,000) it is less likely that delays will be caused by third parties. Although it is recommended to obtain as much of the detail as possible prior to taking out the Grant, when it is safe and appropriate to do so, it should be possible to rely on estimates rather than allow the process to be delayed.
Typically, complications occur in more complex Estates, particularly taxable Estates. For example, it can take time to value business assets, interests in Trusts and overseas assets. In relation to overseas assets, consideration will need to be given as to the effect of any Will made in another country.
There may be difficulty in raising Inheritance Tax which needs to be paid to HMRC prior to the Grant being issued and this may take time to be resolved. At this stage, Inheritance Tax is due on the value of the ‘non property’ assets and, depending on when the deceased passed away, on the instalments due on the ‘property’ assets. The first of the ten annual instalments is due at the end of the sixth month after the date of death. In some cases, where no other funds are available, HMRC may be prepared to issue the relevant form (receipted IHT421) leading to a ‘Grant on credit’.
Litigation and Contentious Probate
Disputes in relation to the validity of a Will can significantly delay the administration of the Estate.
Someone with an interest in an Estate (i.e. someone who would be entitled to an inheritance under another Will or under the Rules of Intestacy) may prevent Probate from being granted by entering what is known as a ‘caveat’ at the Probate Registry.
This can be challenged but it will cause a delay. If challenged, the person entering the caveat may ‘back down’. If he or she declines to do so (and takes the step known as ‘entering an appearance’), the caveat can only be removed:
- Before proceedings are issued – by agreement between the parties and with the approval of the District Probate Registrar, or
- If proceedings have been issued – by Order of the Court
It is possible to take out a Limited Grant to deal with the assets of the Estate pending the resolution of the dispute, but it will not be possible for the Estate to be distributed and for the administration to be concluded until the dispute has been resolved.
How to Reduce Risk of Delays in Probate
The best advice to anyone is to ensure that he or she leaves a professionally written Will and that the Executors are aware of where the Will is kept (including copies of any overseas Wills). The Will should provide for a substitute Executor in case the first Executor is unwilling or unable to act.
It is recommended that someone with business or personal assets overseas seeks advice as to how these are to be dealt with in the event of their death. In an Estate in which Inheritance Tax will be due, ideally, consideration will have been given as to the funding of this.
When appropriate, a Letter of Wishes should be prepared to accompany the Will, commenting on why a particular person has been excluded from the Will. Also, after Probate is completed, a Will can become a public document but a Letter of Wishes is private.