Timeline for Obtaining Probate and Administering the Estate

Timeline for Obtaining Probate and Administering the Estate

As executor you will be giving an undertaking to the court that you will administer the estate in accordance with the law. This means meeting certain deadlines. Regardless of the deadlines the beneficiaries almost certainly want you to administer the estate as fast as possible. There are some time factors that you must take into account if you wish to ensure that you are not exposing yourself to risk of personal liability.

Notice of Intention to Apply for Probate

  • The first period an executor will confront is the fourteen (14) days mentioned in the first legal notice, called the “Notice of Intention to Apply for Probate”. There may be a period that you are required by the will or by law that beneficiaries have to survive the deceased. This is normally thirty (30) days.

Applying for probate 

  • When your solicitor has collected all the information necessary to prepare the probate application you will sign the application and it will be lodged at the Supreme Court.

  • There have been times when the Court has taken three (3) months to process a probate application.

  • In the old days it was much more than that. There have been times when the process within the court has taken as little as ten (10) days. It is unpredictable but as a general rule you can expect something in the order of twenty-eight (28) days between lodging the application and receiving the grant of probate. This can be much longer if there are any unusual circumstances, such as:

    • certain defects in the will;

    • defects in the application, or

    • other complexities that the Court require to be clarified.

If the Court is not satisfied with some aspect of the probate application then it will “raise a requisition” which is essentially a please explain letter to the solicitor seeking further information before the Court will make the grant of probate.

Notice to Creditors 

  • Once the grant of probate is made a second notice must be published, called the “Notice to Creditors”.

  • Depending on the circumstances you as executor may be advised to delay distribution to beneficiaries by six (6) months from the date of death to avoid personal liability to creditors of the estate, and you may be advised to delay distribution to beneficiaries by a full year to avoid personal liability to claimants against the estate.

  • Generally executors can make interim distributions to beneficiaries to keep them happy, while retaining a substantial part of the estate to cover possible claims during those periods.

  • Otherwise as executor you will want to do the right thing by the beneficiaries by generally treating the whole thing as pretty urgent while complying with the law and avoiding personal liability.

Income Tax assessment 

  • The part that gives deceased estates a bad reputation for taking a long time is getting the final income tax assessments, and occasionally an estate will have an asset that gets frozen due to an insolvency in a financial institution, such as what happened during the Global Financial Crisis.

  • In those extreme cases finalisation of the estate has been known to take years. Generally the beneficiaries can cope with these sorts of delays as long as the executor acts reasonably in making interim distributions and is otherwise transparent in honestly explaining to beneficiaries the causes of the delays.