How long will an executry take to conclude?
Having to deal with the emotional effects of a loved one’s death can be difficult and painful.
Add to that a need to sort out their financial affairs/assets/debts and it can be overwhelming.
This is where it can be helpful to instruct a solicitor to relieve some of the pressure in resolving all matters to do with the estate.
In these situations, one of the first questions people have is: how long will it take to sort it all out?
In this article, we’ll consider three aspects of the time it will take for an executry to be processed from start to finish. Firstly, we’ll look at some fundamental points about timescales. Secondly, we’ll consider some factors which, if present, can result in extra time being required. Finally, we will look at some areas where there is no logical basis for variations in timeframes but they exist nevertheless.
First of all, here are some general comments about “basic” timeframes.
No two executries are alike and the length of time required to wind up the estate will vary according to the size of the estate and its complexity.
Once your solicitors have had a chance to review whatever initial information you can provide, it should be possible to give a rough estimate of timescales.
Your solicitor will be keen to manage your expectations in this respect as well as possible. No one wants to be criticised later for apparent delay in winding up an estate or for poor communication regarding timescales, especially when estimates of time to completion can change during the course of an executry.
“Anything can happen” in as much as there are situations where at first sight the estate might appear to be straightforward yet later turn out to be complicated and time-involved. On the other hand, an estate that gave every appearance of being challenging at the outset may prove to be simpler than expected. Your solicitor should be able to provide you with a rough estimate of how long the process will take – an estimate which will need to be repeatedly updated as matters progress.
As an absolute minimum timeframe, we generally advise clients and beneficiaries that they will not receive any funds for 6 months after the death.
Why this “guideline” minimum? It’s because, in some circumstances, there may be unpaid debts or outstanding bills. Before final division of the estate takes place, all debts must be paid. Otherwise, the Executor might be liable to settle any unpaid debts, personally.
Realistically, it is more likely to take a year (from time of instruction of the solicitor) to wind up an estate.
Now, we’ll consider factors which in themselves can cause the administration and conclusion of an estate to take longer.
Basic timescales may be extended if:
• there are overseas assets.
• there is a business to be sold.
• there is a property (or properties) to be sold.
• Inheritance Tax is due and the District Valuer becomes involved.
• the Department for Work and Pensions (DWP) instigates an investigation into whether all assets were declared when any benefits claims were made during life (i.e. has there been an “overpayment” of benefits to the deceased which the estate will have to repay?). In our experience DWP quite often launch an investigation where the deceased was in receipt of Pension Credit. This investigation can take up to 6 months and the estate cannot be paid out in the meantime.
• there is a claim for Legal Rights (by a close family member of the deceased).
• there is a need to identify and locate any beneficiaries of the estate.
• there are shares to be sold in the UK (and timescales will always be extended if shares are owned but the share certificates are missing).
Finally, we look at areas where there is a “randomness” to how quickly things will be processed.
It’s worth noting that Confirmation (equivalent to “Probate” in England and Wales) is a legal document from the local Sheriff Court, which allows the Executors of the deceased to acquire the assets and property of the estate in order to effect the division of the estate. As a ballpark timescale, it’s best to reckon with between 3 to 6 weeks for Confirmation to be granted, once the application has been submitted to Court.
And bear in mind that you can only apply for Confirmation once you can say with reasonable confidence what’s in the estate and what its value is. You have to set all the details down in an Inventory (list) which goes to the Court as part of the application. How long will it take to get to that point (which is before the “3 to 6 weeks” mentioned above)? How well did the deceased have all their assets and liabilities noted down somewhere? Often, “search and discovery” of information by relatives / executors is piecemeal and time-consuming.
Since each case is different it’s not possible to give an accurate prediction of the timescale involved in this process – but in some cases it can be very lengthy.
However, once Confirmation is granted, your solicitor can send the Certificates of Confirmation to the relevant parties and instruct them to release the deceased’s funds either directly to the executor or to the firm.
Confusingly, while some banks will only release funds from accounts on seeing that Confirmation has been granted, others will release funds much sooner. This can lead to apparent “delays” which are not the fault of your solicitor – e.g. “Why have X bank not paid over the funds yet when Y bank paid you 3 months ago?” The answer is: “Because different banks have different requirements to be fulfilled before they will release the funds they hold.”
And a word about “communication”…
In making sure that communication levels are maintained at a satisfactory level, there is a tension between communicating “more” and running up more legal fees or communicating less to keep costs down as much as possible.
Communication is vital but most executries are not charged on a fixed fee basis. Rather on a “time and line” basis (i.e. based on an hourly rate). In other words, all communication is potentially chargeable, whether it takes the form of letters, emails, phone calls or meetings.
In dealing with an estate, the solicitor’s client is the Executor or Executors. The solicitor and Executors owe duties to the beneficiaries to wind up the estate properly and correctly but the beneficiaries are not the clients of the solicitor. This can be potentially confusing where – as with many estates – Executors are also beneficiaries of the estate. In contentious situations – which your solicitor will do their best to avoid, if possible – it may be necessary for a person to have one firm of solicitors acting for them in their capacity as Executor (i.e. as a trustee) and another firm acting for them in their capacity as beneficiary (i.e. as an individual).
How we can help
If you believe that an estate you are handling may require an application for Confirmation and you might like our assistance to administer an executry, our experienced executries team would be pleased to advise you.
Give us a ring on 01343 544077 and one of our team will chat you through your options.
If you prefer, you can submit a Free Online Enquiry to give us basic details of your query, or to request that we should call you back.
All initial enquiries are free of charge and without obligation, so please don’t be stuck for someone to speak to.
Applying to be Appointed as Guardian of an Adult in Moray