Executor Delay in Probate: What Beneficiaries Can Do
An executor has one year to administer the estate (“the executor’s year”). After that, interest runs on delayed cash legacies and beneficiaries can take legal action. Here is what your rights are.
The Administration Timeline
Frequently Asked Questions
What is 'the executor's year' in English probate law?
The executor's year is a principle under English law (derived from common law and recognised in s44 Administration of Estates Act 1925) that an executor is generally not in breach of duty if they have not distributed the estate within the first 12 months from the date of death. The rationale: estate administration takes time — obtaining the grant of probate, collecting assets, paying debts, resolving tax, dealing with property sales. Within the first year, a beneficiary cannot normally compel payment of their legacy or share of residue, even if the estate appears ready for distribution. After 12 months: the position changes. A beneficiary can demand payment of a specific pecuniary (cash) legacy, and interest begins to accrue on overdue legacies from the end of the executor's year (or from an earlier date if the will specifies). For shares of residue: the beneficiary can demand an account and, if necessary, apply to court to compel distribution.
Does interest run on a delayed legacy — and at what rate?
Yes — interest accrues on an overdue pecuniary (cash) legacy from the end of the executor's year (12 months after death), unless the will specifies a different date or rate. The statutory rate for interest on legacies is the rate applicable to judgment debts under s17 Judgments Act 1838 — currently 8% per annum on the gross amount of the legacy. This rate has remained at 8% since 1993, though it may be reviewed. Note: if the will directs that a legacy is to carry interest from the date of death (or another specified date), the will provision governs. Interest on residue: beneficiaries of residue can also claim interest if the executor unreasonably delays transferring residue, though calculating interest on a share of residue is more complex. Both specific and residuary beneficiaries should be aware that delay by an executor can create a personal liability on the executor.
What can a beneficiary do if an executor is taking too long?
If an executor is taking longer than is reasonable: (1) Write formally to the executor requesting a completion timeline and an account of the estate. Keep all correspondence; (2) Request a full estate account — executors have a duty to account to beneficiaries; (3) Instruct a solicitor to write on your behalf demanding distribution or an account — this often prompts action; (4) Apply to the Chancery Division of the High Court to pass the accounts — an official account is formally signed off by the court; (5) Apply under s50 Administration of Justice Act 1985 to remove the executor and substitute another — courts are reluctant to remove an executor without good reason, but unreasonable delay combined with non-communication is relevant; (6) If the executor is a professional (solicitor, bank, trust company), complain to their regulatory body (SRA, FCA); (7) Apply for the appointment of a receiver or for administration pendente lite (during a dispute) if urgent asset protection is needed.
What are valid reasons for an executor to take more than 12 months?
Some delays are legally justifiable and do not make the executor personally liable: (1) Complex or disputed assets — business interests, unlisted shares, foreign property, or agricultural assets requiring specialist valuations; (2) HMRC IHT enquiry — if HMRC is investigating or challenging the IHT account, distribution cannot safely proceed until the matter is resolved; (3) Missing beneficiaries — the executor must take reasonable steps to trace all beneficiaries before distributing; (4) Contested will — if the will is being challenged (caveat entered, probate action), the executor cannot safely distribute; (5) Property sale in a slow market — if the estate includes property that is taking time to sell and the proceeds are needed to pay debts; (6) Creditor claims — the executor must allow a reasonable period for creditors to come forward (s27 Trustee Act 1925 notices). The key is that the delay must be caused by the administration itself — not by the executor's inactivity, disputes with beneficiaries, or failure to deal with paperwork.
Can an executor be personally liable for losses caused by delay?
Yes. An executor who causes loss to the estate through unreasonable delay can be made personally liable for that loss — a breach of their fiduciary duty known as 'devastavit' (wasting the estate). Examples of delay causing personal liability: (1) Failing to sell investments at the right time, resulting in a fall in value that could have been avoided; (2) Failing to insure estate property, which is then damaged; (3) Paying a legacy late, causing the beneficiary to incur costs (e.g. having to borrow money to cover a property purchase they expected to fund with the legacy); (4) Failing to collect estate assets promptly, allowing them to deteriorate or be lost; (5) Failing to pay IHT on time, so that late-payment interest accrues unnecessarily on the estate. The beneficiary must show both that the executor was in breach of duty and that the loss was caused by that breach. These claims are brought in the Chancery Division of the High Court.
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