One of the most common questions I am asked when dealing with Probate matters is: Is there a time limit for the Executor to obtain Probate of a Will? Most people are surprised to hear that the answer is “no”. But that is not the end of the story.
Being an Executor is not always an easy job. Commonly, an Executor is a close family member or friend of the deceased and is grieving. Visiting a lawyer to talk about Probate is quite possibly the last thing they want to do.
An Executor may feel pressure from the beneficiaries named in a Will to “get moving” and deal with the estate so that the beneficiaries can receive their entitlements. A beneficiary may have a very good reason for wanting action to be taken quickly. So, what is the Executor’s responsibility in this regard?
There is one time limit that applies – Probate of a Will cannot be granted until at least 28 days have passed since the death. For all practical purposes this is not an issue, as the Death Certificate alone usual takes several weeks to arrive after the funeral.
But at the other end, there is no time limit specified in any legislation by which an Executor must obtain Probate, or take steps to obtain Probate.
In legal terms, an Executor holds an estate upon trust for the benefit of the beneficiaries named in a Will. Like all trustees, the Executor owes a duty to the beneficiaries to act in their best interests. Therefore, even if there is no time limit, the Executor must act reasonably and various remedies may be available to beneficiaries who feel that the Executor is not doing their job.
As with many legal issues, the circumstances of the case will determine what action may be taken. If you are concerned about an estate that is not being dealt with, or if you need guidance as an Executor, then we would be happy to discuss the matter with you.