After the death of a family member, it usually takes a bit longer than a beneficiary would like to receive their inheritance under a Will. Why is this and what can you do about it?
On the death of the Will maker, the person appointed as the executor of their Will becomes responsible for ensuring the terms of the Will are met and the deceased’s estate is ultimately distributed to their beneficiaries. As a beneficiary you may be asking yourself ‘why is it taking so long for me to get my inheritance?’. This article is aimed at managing your expectations and giving you some insight into:
- the timeframe associated with the administration of an estate; and
- the duties the executor owes to both the estate and to its beneficiaries.
Bear in mind, the rules around probate and administration differ in each State and Territory of Australia and if you have specific concerns, it is important you seek legal advice.
Things that can delay the Grant of Probate
Death Certificate: Without the death certificate, the executor can do nothing with the estate. The funeral director will usually register the death and provide the executor with the death certificate within six weeks. If there is any enquiry into the cause of death, the provision of the final death certificate may take months. The executor needs the Death Certificate to apply for probate and administer the estate, so any delays in the provision of the Death Certificate will affect the timeline for the administration of the estate.
The Will: Without the original Will, the executor cannot apply for probate and administer the estate. If it is known the deceased made a Will but it cannot be located, it will require detective work on behalf of the family to find it. This may involve a thorough search of the deceased personal effects and/or the family asking the bank, solicitor, accountant, financial planner, and even friends for assistance. Enquiries may need to be made with trustee companies and advertisements placed in law journals and newspapers.
If the Will cannot be found, then the family may decide in due course to apply to the Supreme Court for Letters of Administration so the estate can be distributed according to the laws of intestacy. Please note that the intestacy laws may require the distribution of the estate in a manner that may not suit all potential beneficiaries so, if there is a Will, it is usually best that time is set aside to look for it.
If you need assistance in finding a ‘lost Will’ or have given up hope on finding it and have decided to apply for Letters of Administration, Andreyev Lawyers can assist. Contact us on 1300 654 590 or by email to find out how we can help.
Probate: Probate is the official recognition by the Probate Registry of the Supreme Court of the relevant State or Territory, that the Will is valid. Once satisfied, as to a Will’s validity, the Probate Registry will issue the executor with a Grant of Probate that allows the executor to start administering the estate. Probate is not required for the administration of every Will but if the estate is a large one or contains real property or an aged care home bond, it is almost always required. Applications for probate should be made by the executor within a ‘reasonable time’ after the death of the deceased; in most States and Territories that will be within six months of the deceased’s death.
Identification of the deceased’s assets and liabilities: As previously mentioned, the Death Certificate and original Will are required to apply for a Grant of Probate. A probate application also requires the identification of the deceased’s assets and liabilities. This can be an area where delays happen depending on how complex the deceased’s affairs are and how organised they were. To prepare the Probate Application, the executor must locate bank statements, share dividend statements, superannuation fund statements, certificates of title, registration papers for motor vehicles etc. and copies of any relevant agreements whereby the deceased owed or was owed money, including mortgages and loan agreements and outstanding bills.
If the Probate Registry has questions about the application, this may also affect how quickly a Grant of Probate is made. You can expect delays if:
- the Will is in any way damaged or altered from its original form (for e.g. a staple has been removed);
- the testator had various spellings of their name or an alias (not unusual in a country where one in three people are born overseas);
- there are questions about the validity of the Will; and/or
- questions about the testamentary capacity of the testator.
If a disgruntled beneficiary has lodged a caveat with the Probate Registry Office flagging there is a claim or dispute involving the Will, there will be delays in the issuing of a Grant of Probate.
Once the executor has received the Grant of Probate, they must administer the estate, i.e., they must first pay the testator’s debts and then distribute the assets to the testator’s beneficiaries. In the performance of their duty, the executor has certain fiduciary obligations towards the estate and its beneficiaries, including to put the interests of the beneficiaries before their own.
Generally, the administration of an estate usually takes about 12 months once a Grant of Probate has been made, sometimes known as the ‘Executor’s Year’. If the estate is particularly complex or disputes arise during the administration, the process can take longer. It is not unusual for an executor to delay distributing some or all the estate until such a time the executor is confident that there will be no further third-party claims made against the estate. This is because an executor may be personally liable for these third-party claims if they have distributed the entirety of the estate before the claims have been satisfied.
Rights of a beneficiary
As a beneficiary you have certain rights during the administration process:
- Right to the due administration of the Will: Beneficiaries have the right to expect that the executor of the Will fulfills their duties properly. This includes administering the estate, paying debts, distributing assets, and acting in the best interests of the beneficiaries. If you have concerns about the executor’s actions or believe they are not fulfilling their responsibilities, you may have the right to challenge their actions and seek appropriate remedies.
- Right to Request a Copy of the Will: Beneficiaries have the right to request a copy of the Will. The executor of the Will should provide you with a copy upon the testator’s death. If you have not received a copy, you can directly request one from the executor.
- Right to Information: Beneficiaries have the right to be informed about their status as beneficiaries, their entitlements, and the progress of the estate administration. The executor should keep beneficiaries updated and provide relevant information throughout the process. If you have concerns or need clarification about any aspect of the estate administration, you have the right to request information from the executor.
- Right to Contest the Will: In certain circumstances, a beneficiary may believe that they have not been adequately provided for in the Will or the Will is invalid for lack of testamentary capacity, undue influence, or fraud. It’s crucial to consult with a legal professional to determine the validity of your claim and the applicable procedures for contesting the Will. Please note that each State and Territory has a radically different time frame within which a Will can be contested, for example, in Tasmania you have 3 months from the date of probate and in New South Wales you have 12 months from the date of death. If you wish to challenge a Will make sure you seek legal advice as soon as possible.
- Entitlement to a Gift: As a beneficiary named in a Will, you have the right to receive the gift or bequest specified in the document. This means that the assets or property designated to you should be distributed according to the terms of the Will unless there are conditions or limitations set out in the document.
- Right to Receive Assets: Beneficiaries have the right to receive the assets or property bequeathed to them in the Will. However, it’s important to note that the actual distribution of assets may be subject to the payment of debts, taxes, and administrative expenses of the estate. The executor is responsible for ensuring the proper settlement of these obligations before distributing assets to beneficiaries.
As a beneficiary under a Will in Australia, you possess certain rights that protect your interests and ensure a fair distribution of assets under a Will within a reasonable timeframe. While this article provides a general overview, it is essential to consult with a qualified legal professional for personalised advice based on your specific circumstances and the laws of your State or Territory. Understanding your rights will empower you to navigate the estate administration process with confidence.
How we can help
If you are not happy with the way an estate is being administered, for example, there are unexplained delays in action being taken or a lack of communication from the executor, get in touch with us and we will help you to force the pace or if necessary, remove the executor. Contact us on 1300 654 590 or by email to find out how we can help.
The information contained in this post is current at the date of editing – 6 June 2023.