Legally Speaking: Expectations vs. reality. Waiting for your inheritance

Every day someone is waiting to receive their inheritance; many uncertain of what to expect or how their expectation fits into reality. If you are ever in this position you may find yourself thinking, why is this taking so long? Why have other people I know received their inheritance in less time? Why the delay? The answers to these questions will be different in each case and will also depend on what stage has been reached with the administration of the estate.

Three stages of estate administration

The process for administrating an estate can often seem tedious and complicated but it need not be so. From a beneficiary’s point of view, the legal aspects of the process can be broken down into three main stages. The first is determining the assets held by the deceased; the second is applying for the grant of representation; and the third is distributing the assets. If you are a beneficiary, you may or may not be involved in all of these stages; however certain issues may arise during these stages which may require your attention.

As there are fixed and variable steps involved in each stage it is important to note that the circumstances surrounding an estate can dramatically affect the variable timelines. Even in the most straightforward cases, it may not be possible to calculate how long it will take to complete the process from start to finish. However, it is reasonable for you to expect to be given an approximate timeframe at each stage in the process.

As a beneficiary you might expect three months after the death of the deceased to be a sufficient period to wait to receive your distribution out of the estate. However, in reality, the entire process can take much longer especially when dealing with a complex estate. It therefore helps to have some insight in to the process of probating and administering an estate and why can it be time consuming.

Stage one:

The will and assets
The first stage in the process relates to establishing whether a valid will is in place and obtaining details of all the deceased’s assets and liabilities, including property that the deceased owned jointly with another person. Where there is a will this may be done by the named executors. Otherwise the responsibility of doing so may fall on the family, next of kin or persons intending to apply for the grant of representation of the estate to arrange. The timeframe for this stage will vary depending on how easily the assets can be identified.

Stage two:

Grant of Representation
The second stage in the process involves applying to the court for a Grant of Representation to administer the estate. The Grant authorises the personal representative(s) to handle the affairs of the deceased including payment of debts including funeral and testamentary expenses, making arrangements for minor children and distribution of assets to beneficiaries. Before the assets of the deceased’s estate can be distributed, an application must be made to the court for the Grant. This also means that the family may have to bare the cost of some of the initial expenses such as the funeral and legal expenses upfront and seek reimbursement from the executors of the deceased’s estate once the Grant has been obtained.
Another point for beneficiaries to note in relation to obtaining the Grant, is that if there is a valid will, the Grant will be made in favour of the executors named in the will.

However, if there is no will, a decision must be made as to who will be acting as the administration of the estate. Depending on your relationship with the deceased, you may be among the category of persons allowed to apply for the Grant under the law.
Your lawyer will assist with preparing the necessary documents to apply for the Grant as well as liaise with the court on any specific issues that may arise. On average, the timeline for obtaining the Grant takes approximately three months however in certain cases it could take much longer.

Stage three:

Distribution of assets
The approval of the Grant will lead to the third stage of the process, distribution. The timeframe for distribution of assets is the hardest stage to predict. There can be numerous complexities to deal with such as multiple beneficiaries, ambiguities within the will, incorrect or unequal values of assets and actual transfer of legal title of property to effect.
Some other aggravating delay factors for expectant beneficiaries include unexpected disputes and estate related fees. Unexpected disputes in respect of assets or other issues may arise at any time and significantly impact the progress of administering the estate.

Finally, it is important to emphasise that one of the biggest mistakes you can make as a beneficiary is to treat the deceased’s assets as your own before the assets have been transferred to you. Until an asset has been fully and legally transferred, you should never treat it as yours. You should not sell your assets prematurely or spend money you do not already have in contemplation of receiving it. If you do, what may already have felt like a substantial wait, could easy feel like an excruciatingly long period in time should any unexpected delays arise.

While it is difficult in the midst of grieving to focus on all of the details involved in administering an estate, not having a basic understanding as to what are realistic and reasonable expectations for the administration of an estate will only increase your frustration.

Your local estate lawyer will be able to explain each step in more detail based on your circumstances. A lawyer will also be able to liaise with the Court’s office on your behalf and recommend other local professionals to assist you with certain aspects of the process where necessary.

Disclaimer: This article consists of general information only and is not intended to be legal advice. Whilst every effort is made to ensure the accuracy of this information, legal advice should be obtained from a qualified lawyer on any legal matter.

 

Chanda230

Chanda Glidden, Associate at Appleby

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