A common question we hear often from both beneficiaries waiting for their inheritance and executors feeling overwhelmed by the probate process is can an executor delay probate and on what grounds.
The answer depends on the circumstances. In Western Australia, there is no strict timeframe for applying for probate. Typically, a reasonable timeframe for an executor to apply for probate is generally within 6 to 12 months of the deceased’s passing.
As a trustee of the estate of the deceased, an executor has a fiduciary duty to administer the estate promptly and efficiently. Unreasonable delays may lead to serious consequences, including being removed from the role or being held personally liable for any losses caused to the estate.
Need for Probate
A Probate is the formal confirmation by the Supreme Court that a Will is valid and that named executor has the authority to administer the estate in accordance with the Will and the law.
Not every estate requires probate. The need depends on the nature and location of the deceased’s assets. However, most institutions such as banks, share registries and Landgate will require a Grant of Probate before allowing the executor to deal with those assets.
Reasons an Executor might delay applying for probate
Although executors must act diligently, there are legitimate reasons why an application for probate may be delayed.
Complex or large estate
Some estates are complex and require time for the executor to properly identify assets, confirm creditors and determine asset values. Executors must locate all relevant documents, notify beneficiaries and gather accurate information before applying for probate.
Acting too quickly without completing these steps can expose the executor to personal liability for losses due to negligence.
Family disputes or challenges to the Will
Delays may occur where there are disputes about the validity of the Will, the deceased’s testamentary capacity, or a potential Family Provision Act claim. In these cases, it may be reasonable to postpone applying for probate until disputes are clarified or resolved. However, executors must continue to act prudently and cannot use potential disputes as a blanket excuse to delay indefinitely.
Missing or unavailable documents
Sometimes the executor knows they are named in the Will but cannot locate the original document, until the original Will is found, probate cannot be granted. Taking prompt steps to locate or reconstruct the Will is essential.
Personal circumstances
Executors who are grieving, unwell, or living interstate or overseas may face difficulties fulfilling their duties. However, personal circumstances do not relieve an executor of their legal obligations.
If unable or willing to act, the executor should consider renouncing the role or appointing legal representatives to manage the estate on their behalf.
When does delay become a problem?
Delays become problematic when they are unreasonable or unexplained. We often hear from frustrated beneficiaries whose executors have:
- failed to apply for probate for years without explanation;
- stopped communicating with beneficiaries;
- made excuses but taken no concrete action; or
- refused to provide updates on the estate’s progress
These situations often indicate that the executor is either struggling with the responsibility, or deliberately obstructing the estate’s administration.
The Executor’s duty to act promptly
Executors owe a fiduciary duty to beneficiaries to administer the estate with reasonable diligence. While “reasonable” depends on the circumstances, most straightforward estates should see probate applied within 6-12 months of the date of death.
Unreasonable delays can lead to serous consequences, including:
- Loss of income
Estate assets that could generate income may remain unproductive. Executors can be personally liable for lost earnings caused by inaction. - Declining asset values
If property or investments decline in value due to delay or inaction, the executor may be responsible for the resulting financial loss. - Increased costs
Delays increase legal and administrative costs, which ultimately reduce the inheritance available for distribution to the beneficiaries. - Removal from the role
Beneficiaries can apply to the Supreme Court to have an executor removed if they fail to administer the estate properly. The Court can appoint another executor, including a professional administrator, to complete the process.
What can beneficiaries do?
If you believe an executor is delaying probate without justification, there are several options available:
- Communicate clearly: Write to the executor requesting an update on the estate’s progress and a timeframe for lodging the probate application. Often, a clear request can prompt action.
- Seek legal advice: Understanding your rights as a beneficiary requires professional and tailored legal advice at an early stage. At Solomon Hollett Lawyers, we regularly assist both executors managing complex estates and beneficiaries concerned about unreasonable delays.
- Issue a Citation: In Western Australia, beneficiaries may issue a “citation to take probate”. This is a formal Court process requiring the executor to either proceed with probate or renounce their position within a specified period.
- Apply to remove the Executor: If delays are serious and unjustified, beneficiaries can apply to the Supreme Court to remove the executor and appoint someone else to administer the estate.
Advice for Executors
If you are an executor feeling overwhelmed, do not ignore your obligations. You have options that can help you fulfill your duties efficiently and avoid personal risk.
You can:
- Engage Solomon Hollett Lawyers to guide you through the process step-by-step;
- Appoint us to handle the entire administration on your behalf; or
- Renounce your position if you are unable to act.
Remember that legal fees for administering an estate are usually paid from the estate, not from your personal funds. Getting professional help early can prevent problems before they arise.
Next steps
Whether you are an executor unsure of how to proceed or a beneficiary frustrated by delays, early legal advice can help resolve issues quickly and cost-effectively.
While some delay in applying for probate is normal, executors must act with reasonable diligence to meet their legal duties. Understanding what is reasonable, and taking timely action, can make all the difference for everyone involved.
If you’re feeling uncertain about your role or rights, speak to our team of Wills and estate lawyers today. We’ll help you understand where you stand — and what needs to happen next.
