An executor not communicating with beneficiaries following the death of a loved one can often feel alarming, creating unnecessary angst during an already emotionally difficult time. It can therefore be useful, from the perspective of the beneficiaries, to know how best to approach this and what can be done to resolve any issues, where necessary. In this way, the beneficiaries can regain some level of control and take action, if needed, to protect their interests. It can also help to understand the timescales and tasks involved when winding up a deceased’s estate and whether or not there have been any undue process delays on the part of the executor(s).
In this guide, we look at what steps can be taken to address the often tricky and sensitive scenario of an executor not communicating with beneficiaries, and whether any lack of communication is cause for concern, or simply indicative of how long these things take.
What is an executor expected to do and when?
After a death, the executor(s) — or administrator(s), if the deceased died intestate — has the job of winding up the deceased’s financial affairs. The task of administering an estate can be time-consuming and complex, involving all sorts of detailed matters, from filing a tax return and discharging any Inheritance Tax (IHT) liability, together with any debts, to valuing and selling estate assets. This is all before distributing any residue to the beneficiaries.
An executor or administrator, also known as the personal representatives, should aim to finalise the deceased’s affairs as efficiently and quickly as possible, although even for a simple estate, this can still take around a year or so. For all but the simplest case scenarios, dealing with an estate usually takes far longer, in some cases, several years, especially if there are multiple beneficiaries, plus several properties and possessions to sell off.
Before finalising and distributing the estate, the personal representatives are not only required to settle all debts and liabilities, as well as administration costs and funeral expenses, they are also entitled to take the necessary steps to protect themselves and the estate from any potential future liability. This is because executors have a duty of care to carry out the administration of an estate with care and skill, which broadly means that they must act in the best interests of the beneficiaries, and avoid loss or injury to the estate.
Many lay executor(s) will elect to instruct a solicitor, accountant, surveyor, or any other relevant professional, to assist with various matters, such as applying for probate, preparing the IHT return, dealing with any outstanding Income Tax or Capital Gains Tax matters arising out of the deceased’s estate, as well as the valuation of any property, all of which can take time in order to deal with the estate administration appropriately. A lay executor is someone who is named in a Will as an executor, and who administers an estate personally without formal legal representation from a firm of solicitors, although they can choose to engage the services of a professional to assist them. However this, in turn, can very often lead to delays, where most professionals instructed will often have busy practices, with minimum turnaround times to complete their appointed tasks. Delays can also arise because of other third parties, including the Probate Service and HMRC.
The fact that an estate is taking several months or even several years to be finalised, and for the beneficiaries to be kept waiting to receive their inheritance, is not uncommon. In many cases, this is not indicative of any inaction on the part of the personal representative(s), but is often just how long it takes to deal with someone’s financial affairs in the correct way.
Is any lack of communication by an executor cause for concern?
An executor not communicating with beneficiaries following the death of a loved one does not necessarily mean that anything is wrong, but could simply be indicative of the fact that the executor is also waiting to hear back from a third party through no fault of their own.
It is important to bear in mind that when a person is appointed as a lay executor, with the exception of the right to recover reasonable expenses, the general rule is that they will not be entitled to be paid for the time they spend in administering the estate. The executor(s) must still discharge their duties responsibly, despite not being paid, but they cannot be expected to treat this role as a full-time job or dedicate all their waking hours to it. They may be in full-time employment or have families of their own to take care of, where they cannot be expected to be on call 24/7, providing constant updates on a daily basis.
In reality, however, even though the tasks required of the executor can be complex, provided a professional is instructed to deal with any legal and financial aspects, it is very often a waiting game once the necessary paperwork has been submitted. This then has a knock-on effect to the subsequent task in hand, where things have to follow a certain order.
For example, before an executor can start dealing with the deceased’s estate, they will need to apply for a grant of probate. This is the legal document confirming that the named executors are legally authorised to administer the deceased’s estate in accordance with the Will. Every case is different, where the exact amount of time involved will depend on the size and complexity of the estate. In general, however, the whole probate process can take between 6-12 months. Prior to applying for probate, the executor(s) will also first need to estimate the estate’s value, where they will need the value as part of the probate application, and to report the estate’s value to HMRC for the purposes of Inheritance Tax.
Importantly, up to four executors can be named in a Will to take on the responsibility for administering the deceased’s estate. However, a named executor is not obliged to act in this capacity, where they may choose to reserve or renounce this right. This means that where several executors were appointed in the Will, only one or two may be actively dealing with winding up the deceased’s estate, and who may be experiencing the usual probate delays, which may also account for one or more executor not communicating with beneficiaries.
What can beneficiaries do if an executor is not communicating?
The fact that an executor is not communicating properly is not necessarily indicative of potential misadministration. It could simply be that the executor is busy getting on with the task in hand and/or has not had time to communicate their progress to the beneficiaries.
Still, there are some cases where a lack of communication may suggest inaction or incompetence on the part of the executor, or that they are otherwise not acting in the best interests of the beneficiaries. Either way, it is important for the beneficiaries to establish the reasons for the executor not making contact with them before deciding what action to take.
However, the way in which this scenario is handled will very much depend on the dynamics and proximity of relationships between those involved. Where the executor is a close friend or relative, and the beneficiaries suspect that this person may be simply burying their head in the sand or not admitting defeat, an informal approach may initially be best. In this way, where an executor is not coping with the job for which they were appointed, they can step down gracefully without too much conflict or embarrassment, or accept some help where needed. Equally, the executor who appears to have done nothing, because they have not been good at communicating, may have matters in hand but just need a gentle reminder to keep the beneficiaries in the picture moving forward with more regular updates.
For those cases where the lack of communication has become entrenched, and an executor has not been forthcoming with any or very little information, a more formal approach may be necessary. In these instances, it will be important for the beneficiaries to set out their concerns in writing, maintaining a clear paper trail of what they have sent to the executor by way of correspondence. In the event that the matter cannot be resolved, expert legal advice from a probate specialist should be sought immediately so that the beneficiaries can explore all available options and decide on the best way forward.
What can beneficiaries do if an executor is not acting properly?
If an executor is believed to be not acting properly, either because the administration of the estate appears to be unreasonably delayed, or it has become apparent for one reason or another that the executor is failing in their duties, there are various options open to the beneficiaries to take action. This includes writing to the executor asking for an update on the administration of the deceased’s estate. The beneficiaries can ask to be provided with an account of all estate activities, and if an account is not forthcoming, an application can be made for an order that the executor produces an inventory and account.
In those cases where the executor has failed to obtain a grant of probate, or take any action whatsoever, it is possible to force their hand by using the citation process. A citation is a notice in writing issued by a district judge or probate registrar. The citation calls upon the respondent to enter an appearance, and to take specified steps, failing which the court will grant representation to the applicant or another specified person.
A citation to accept or refuse a grant of probate requires the executor to respond by entering an appearance. The executor can then decide to obtain the grant, or they can decline, in which case the person with next priority can make the application. If the executor does not respond to the citation they will lose their entitlement to act in that capacity in any event. If they enter an appearance agreeing to act as executor, they should then proceed to deal with the application for a grant. In this way, a citation can force the person who has the right to obtain a grant of probate to take action in order to make progress in the administration of the deceased’s estate, or lose their right to act altogether.
In cases where the executor has taken some action in respect of the administration of the estate, known as intermeddling, but has not obtained a grant of probate, then a citation can be given to them requiring them to respond with an appearance. If they file an appearance, they should then apply to obtain the grant. If they do not respond with an appearance, then the interested party can ask the court for permission to obtain a grant themselves.
Alternatively, if the applicant does not want the executor to act, where there may be good reason for suspecting that they will continue to delay the administration or cause loss to the deceased’s estate, it may be more appropriate to seek to remove the executor altogether. This can either be done by consent, asking the executor to agree to step down so that someone else can take over the administration of the deceased’s estate. If it is not possible to agree, the parties may refer the matter to mediation, before asking the court to remove the executor as a last resort. Where the removal of an executor is disputed, there would need to be cogent evidence that the executor was failing to perform their duties correctly.
However, beneficiaries with concerns over potential misadministration of a deceased’s estate should seek expert advice from a probate specialist as soon as possible. These are legally complex matters, typically unique to the facts of each case, for which legal advice should always be sought. Very often, with the right tactics, and expert-led negotiations, court action can be avoided.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
