An online article in the Telegraph raises a very typical inheritance dispute situation; ‘Rebecca Smyth’ is due to inherit a share of her father’s estate but even though he died 4 years ago, she hasn’t received anything. Her brother is administering the estate. As there was no will, he is the ‘Administrator’ of the estate. If there was a Will in place, he would be called the ‘Executor’; it’s the same job. The ‘umbrella’ term for the role is ‘personal representative’ (PR).

A PR is responsible for gathering in the assets of the estate, settling any debts and then sharing out the remainder to the beneficiaries. In Rebecca’s case, the beneficiaries are the PR, her brother and his 2 sisters.

As a solicitor dealing with will disputes, I am all too familiar with beneficiaries getting frustrated by the behaviour of a PR.

It is currently taking at least 4 months for probate registries to process an application for a grant of probate (called a grant of letters of administration where there is no will). Once a PR has got a grant, if they drag their heels, what can a beneficiary do?

The Telegraph wrongly describes this case as a contested probate case; it isn’t. In a case like this, there’s no argument about who should get what. The argument is about the PR just not getting on with their job and being un co-operative. The good news about that is that it’s easier and less expensive for a beneficiary to take action in a case like this than it is if a will is being challenged.

In Rebecca’s case, she complains about lack of help from the Probate Registry (which is the government body which issues grants). But to be fair – it’s not their job to deal with disputes.

Once a grant of probate has been taken out by the executor, the will, if there is one, or otherwise just the grant, becomes a public document and you are entitled to apply online for a copy of it and the grant for a nominal charge. No one is notified if you do this. Or, if probate hasn’t been granted yet, you can complete a form PA1S to ask to be sent a copy of the grant if it’s granted in the next 6 months (this is called a ‘standing search’). If an estate includes a property, it can’t be legally sold or transferred without a grant.

A beneficiary is entitled to a report (called ‘estate accounts’) of all income, expenses and distributions from the PR within a ‘reasonable’ period of time. But PRs are under no obligation to distribute the estate within the first 12 months from the date of death. This is known as the ‘executor’s year’ and no legal proceedings ought to be brought within this period unless there’s a reason for urgency.

How is a dispute resolved?

An argument about an executor’s failure to provide information about the estate, or to ‘get on with the job’ after the ‘executor’s year’ can often be tackled relatively easily by a solicitor sending a letter before action followed by issuing a “summons for inventory and account”.  Section 25 of the Administration of Estates Act 1925 provides that a  PR is under a duty when required to do so by the court, to exhibit on oath (i.e. in an affidavit, which is a sworn statement) a full inventory of the estate and an account of his or her administration of it.  In simple terms they need to set out what they have done with supporting evidence.

The  application is made pursuant to Rule 61 of the Non Contentious Probate Rules for an inventory and account by way of a document called a ‘summons’, supported with an affidavit or witness statement from the frustrated beneficiary.  A hearing then takes place in person, in front of a Probate Registrar and if no reasonable explanation is forthcoming the PR is usually ordered to pay the costs involved in relation to the application (in my experience usually in the region of £3-4,000).

If a summons for inventory and account isn’t appropriate,  or hasn’t worked, a beneficiary may be able to apply to remove the PR (high risk and expensive), or could apply to Court to seek advice on how best to proceed; this latter course of action is an application under Part 64 of the Civil Procedure Rules. This is not generally seen as hostile litigation in the same way as trying to remove a PR is, and so is less risky from a costs point of view. Often, the legal costs will be paid by the estate so long as it was reasonable to bring the Part 64 proceedings.  But, if the proceedings are unreasonably brought or defended, it is always open to the judge to make a different order on costs.

Generally, it’s best to get specialist advice from a contentious probate solicitor about inheritance disputes; our experience can help resolve a dispute quickly and effectively with the minimum emotional toll. At Ridley &hall we are sympathetic to clients who can’t always afford to pay costs upfront and we are open to conversations about funding.

Beneficiaries do have rights and must be treated fairly and openly by executors. When that doesn’t happen, it’s always sensible to try to resolve matters out of court if at all possible. But if that doesn’t work – there are a number of options to hold an executor to account and beneficiaries shouldn’t feel scared or alone.

If you need legal help or advice, get in touch with our Contentious Probate team on our freephone 0800 8 606 2 65.

Sarah Young – Solicitor & Director