Probate can be a complicated and time-consuming process. In some circumstances however the delay may be caused by the executor being too slow or failing to take any action altogether. There is no liability in negligence for delay in getting a Grant of Probate, so what can you do if the executor is taking too long?
Where named executors refuse to take steps to obtain a Grant but will also not renounce their rights, it is possible to force their hand by using the citation process. A citation can force the person who has the right to obtain a Grant of Probate to take action in order to make progress in the administration of a deceased person’s estate, or lose their right to act.
A citation is a notice in writing issued by a district judge or probate registrar. The citation calls upon the respondent to enter an appearance and to take specified steps failing which the court will grant representation to the applicant or another person specified.
Before applying for a citation, you first need to consider whether, if the person entitled to the Grant were to renounce would you be entitled instead? If you are a beneficiary or a creditor the answer could be yes. In that case, where the executor fails to take out the Grant but will not renounce their rights, it may be possible to force progress by seeking a citation from the Probate Registry ordering the executor to take action or lose their right to act.
This form of citation is used where a named executor takes no action to take out a Grant but also fails to renounce. Anyone who would be entitled to a Grant if the named executor renounced can issue this citation.
If the executor is cited and does not respond, their rights in respect of the executorship end. If the person does respond by entering an “appearance” but then still does not proceed to apply, then the applicant can apply to the Probate Registry for an order that the Grant be made to themselves.
A citation to take probate should be used where a person has already taken steps to administer the estate (i.e. he has “intermeddled”) but, six months after the death, has still failed to take out a Grant.
Anyone with an interest in the estate can issue this citation. If the respondent fails to respond, the applicant can apply to the Probate Registry for an order that the respondent be required to take a Grant in a specified time, failing which the Grant is made to the applicant or another person specified.
A citation to propound a will is used where a person becomes aware that there may be a later will that reduces their entitlement under an earlier will or under an intestacy, but they believe that the later will may be invalid.
The citation directs the executors named in the later will, and any persons beneficially interested under it, to seek a Grant proving it, and if the respondents fail to respond to it, the applicant can apply to the Probate Registry for an order for a Grant as if the later will were invalid.
It may not be appropriate to issue a citation if the applicant does not want the executor to act - there may be good reasons for suspecting that the respondent may continue to delay the administration or may cause loss to the estate. In such circumstances, it may be more appropriate to apply to remove the executor altogether.
As with any application to the court, there is a cost to this process. There is no automatic mechanism for recovery of the costs incurred by the applicant, so in practice those costs will usually be irrecoverable. An applicant will therefore want to weigh up carefully the cost that will be incurred with the benefit to be obtained in forcing progress in obtaining the Grant.