There is a process that must be followed when someone dies to establish that the will (if there is one) is the right one, or to give someone the power to administer the estate, if there is no will. Once that is done, time must be allowed for claims or disputes to be notified, and resolved, before assets may be distributed.
What’s the process involved in distributing assets after a death?
Unless the deceased had very limited assets, someone has to either get probate or letters of administration.
Probate is a court order confirming that the will is the right one. It also gives the executors the power to deal with the deceased’s assets. It usually takes about a month to get probate.
If there is no will then you will need to see your lawyer to apply for letters of administration. This is a court order, similar to probate, giving the person appointed power to deal with the deceased’s assets. Again this usually takes about a month.
Once probate or letters of administration have been granted the clock starts running. The executor/administrator then takes control of the deceased’s assets by closing any bank accounts and transferring any assets into the names of the executors/administrators.
Once this is done the executor/administrator can give them to the people who are to receive them (“the beneficiaries”).
Before any assets can be handed out the executor/administrator has to make sure that any debts or claims have been paid. Debts are obligations that the deceased entered into while alive.
Claims might come from:
- Testamentary promises: Sometimes if the deceased made a promise to someone before death then this promise can be enforced against the deceased estate.
- Family protection claims: These are claims by close relatives where the will has not provided for their adequate maintenance and support.
- Claims by spouses and partners: These people have an option to either take what the will or administration gives them or to claim what they would be entitled to under the property sharing rules.
The executor/administrator must hold onto the assets for six months after the grant of probate or letters of administration to allow time for these claims or debts to be notified. If the assets are distributed before then the executor/administrator may be personally liable to pay the debt of claim.
Therefore the minimum time to get an estate distributed after the date of death is:
- The length of time it takes after death to file the court application +
- About a month for the court to grant the probate/letters of administration +
- The six month claim period +
- The time it takes to resolve and claims or disputes.
It is sometimes possible to distribute the estate during the six month claim period if the executors/administrators are certain that there will be no claims and they are prepared to take the risk that they will be liable to pay any claims that do come in. They may get the beneficiaries to promise (in a document called an indemnity) to repay money if it is needed.
There can be other delays resulting from any delays in cashing up any assets, particularly in these days of a slow property market and where any assets include investments which are in receivership or moratorium. Also, if the cause of death has to be established by a coroner this can delay payment of some assets like life insurance policies.
If you have any questions relating to the administration of an estate and the process involved, please contact one of our experienced estates specialists.