What can beneficiaries do if an executor is delaying distribution of a deceased’s assets?
Once somebody dies, their money, property, pension fund and other valuable assets must go somewhere.
In Scotland, the process of distributing the assets of the deceased is clear. If there is a will in place, then all assets should have been allocated to the beneficiaries as per the deceased’s wishes. Where there is no will, or when some assets have been missed from the will, the rules of intestacy apply. Either way, there is a clear direction in place for where all aspects of the estate must go and who is to distribute them - the executor.
The duties of an executor
For administrative purposes, an executor is the ‘legal owner’ of the estate’s assets. They must carry out the terms of the will or apply the rules of intestacy. This usually involves closing the bank accounts of the deceased, settling any debts, selling property and making sure that all of the assets are correctly distributed, along with any other actions dictated by the will.
Nothing in law is quick, but most beneficiaries are settled within 6 - 12 months. A good executor will keep all those involved up-to-date about the steps being taken. However, in a small number of cases, this can take longer than expected. This could be due to the executor not working efficiently, or perhaps they have an agenda that obstructs the beneficiary.
If you believe that you are a beneficiary in a will and are unsure of what you are due, you should ask for an explanation and/or a copy of the will. This should be forthcoming, and if it isn’t, that could be a danger sign. An executor with nothing to hide should be willing to provide all relevant information when requested.
What to do if an executor is progressing too slowly
For most estates (excluding those that are very small), the executor will need to apply for Confirmation (known in England as Probate). Confirmation is essentially a matter of public record in which the court registers the will and an inventory of the assets in the estate. If you are unable to get any details of the will and your share of the estate from the executor, it should be possible to bypass the executor and request all relevant information directly from the court.
If the executor is taking a long time to distribute the assets, it may be that they are daunted by their tasks and struggling to carry out the duties of the role. Try to speak with other family members in case they are aware of any difficulties that the executor is facing. Offer support to the executor with a gentle reminder of their legal duties. The executor can resign and co-opt a new person to act in their place if the process is proving too difficult.
You may not be able to make easy contact with the executor, or may not feel comfortable doing so. Most estates require professional legal input, so you can request a solicitor of your own to reach out to the executor’s legal representation for an update on their progress. If the executor is simply doing nothing to progress the distribution of assets, any beneficiary can raise an action in court to dismiss the executor and appoint a replacement.
The loss of a loved one, whether that’s a family member or a dear friend, is already a difficult and stressful time. This is only made worse by an executor failing to uphold their duties. If you have any concerns about an executor's progress or actions and are unable to settle this with them directly, consult a solicitor for assistance.