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As a beneficiary of a will, it can be frustrating to wait for the executor to apply for a grant of probate. Unfortunately, some executors deliberately delay the administration process or completely fail to take action. Regardless of how slow or incompetent the executor is, beneficiaries can feel helpless in their ability to speed up the process. Family politics, legitimate non-avoidable delays, or suspicious and fraudulent behaviour are some of the reasons that estate administration can be delayed. Beneficiaries suffer because of executors who act slowly – assets can change in value over time and the cost of maintenance on the assets can accumulate as the distribution process drags on.
When executors completely fail to apply for a grant of probate, which is the first step in estate administration, beneficiaries have the right to take legal action in the interest of advancing the administration of the estate. If an executor hasn’t made any attempt at granting probate, beneficiaries and interested parties can file a citation, compelling the executor to act.
A citation forces an executor to either act, or risk facing removal as the executor of the will. If the executor is removed, another interested party will be declared the executor by the courts. The new executor can then apply for a grant of probate themselves.
To issue a citation in relation to the probate of a testamentary document to the executor of an estate, the person issuing the citation (the citor) must have an interest in the estate, and the knowledge or belief that a testamentary document exists and is in the possession of the executor. The citation must be directly served in-person to the executor. After the citation has been served, the executor will have 14 days to act. The options available to the person who has been served with a citation to apply for probate are:
After receiving a citation, an executor will have 14 days to take action. This does not necessarily mean that they must immediately apply for a grant of probate upon receiving a citation, rather that they must take action in some way to progress the administration of the estate. If the citation is meant to compel the executor to provide the citor with a copy of the testamentary documents, they must comply within the 14 days. If the citation is regarding the status of probate on the estate, the time restriction is extended to 6 months after the day of the citation being served, however the person cited still must take action of some form within 14 days of the citation.
If probate has already been applied for but has not been granted by the courts yet, the executor is simply required to provide documentation to the citor, demonstrating that probate has been applied for and they can take no further action until it is granted. This is an action that the executor would have to perform within 14 days of being cited. However, if they have not applied for probate, they must do so in a timely manner so that it will be granted within 6 months from the date of receiving the citation. If after 6 months no probate has been granted, the executor can be removed. The time frame of 6 months can seem like a long time, however, probate can be a lengthy process. If there are any applications to challenge the will during this process, the length of time given to the executor is likely to be extended.
If the executor does not answer the citation, either refusing to issue a grant of probate or not providing explanation as to why probate has not been granted, they can be removed as executor. Once the executor is removed, the person issuing the citation has options available to proceed with the estate administration process.
According to section 25 of the Supreme Court Civil Rules, once the executor has been removed, the person who issued the citation can apply for:
Since executor removal directly conflicts the will-writer’s wishes, it can be a difficult process to find a replacement to take over executorship of the estate. It’s not as simple as appointing the person who filed the citation the executor. The will may need to be cured and modified to enact a new executor or the will may need to be proven in solemn form. The will is required for probate to be granted, so, in some cases it may be necessary to subpoena the original executor to provide estate administrators with the will.
If you’re a beneficiary who is suffering because of a slow executor, contact an experienced estate lawyer today to begin solving the problem sooner rather than later. We can ensure that you receive the estate you’re entitled to in a timely and seamless manner.