What If The Executor Does Not Distribute The Estate After Probate?
A grant of probate allows executors of a will to go about the administration of the estate lawfully. If there is no will, then the estate can be distributed by an administrator under Letters of Administration. To make either application, the executor or administrator has to swear an oath or make a statement of truth to the effect that they will administer the estate in accordance with the law. However, what if the executor or administrator does not distribute the estate?
It is most certainly worth getting advice if this is the case but be prepared that there may be an innocent explanation. Once they have realised the assets of the estate (which in itself can take some time), usually executors and administrators are advised not to make a distribution to the beneficiaries for at least six months, or better still, ten months. This is to see if anyone wants to make an inheritance claim for provision out of the estate, as they would normally have to do so within that timescale. It might also be the case that an executor is also a trustee of a discretionary trust under that will. A discretionary trust allows the trustee to decide what is to be distributed and when. If, for example, a beneficiary struggles to manage their own finances or is suffering from any mental health issues, then the trustee may see fit to defer their rights to the assets until they feel it is appropriate.
However, what if there is no apparent, innocent explanation for a failure to distribute the estate? What can beneficiaries do if the executor, administrator or trustee are treating the assets of the estate as if they were their own and for their own benefit?
At this point, it may be appropriate to apply to the Court for the removal and replacement of the trustee, executor or administrator. Applications can be made to the Court for a full breakdown of the assets of the estate and for payment of those assets to the right beneficiaries (an inventory and an account). At this point, an injunction may be sought to prevent executors, trustees or administrators from carrying out any further actions until the issue has been looked into and resolved. It is most certainly worth obtaining professional, legal advice from a contentious probate solicitor to do this.
Sometimes, however, the legal costs of bringing such a claim are not justified by the size of the estate involved. If the case is lost you may find you have to pay not only your own legal costs but also those of the executor or administrator. If these costs should exceed the value of the estate then you may well end up losing more money than you gain, so this is something you may very well want to consider and bear in mind.
Thankfully there is a more cost-effective procedure in these circumstances. An application can be made to a Probate Registry for a summons for an inventory and account. If you are in this situation, swift and accurate advice and action will be required so legal advice will be significantly beneficial.
Hopefully, you now have a better idea of what happens if the executor does not distribute the estate after probate. If you would like any further advice regarding the distribution of an estate from one of our contentious probate specialists, please feel free to contact us through our website or call 01752 203500.