The last thing anyone wants following the loss of a loved one is a prolonged probate process. This can be especially frustrating if the deceased’s estate involves multiple layers of complexity, ranging from a wide variety of assets to the complicated tax implications that can arise.

In the following guide, we will discuss the causes of probate delays and how you can avoid them through careful estate planning. This will ensure a smoother transition for your executor and your beneficiaries during the difficult times following your death.

The Importance of Timely Probate

The probate process involves determining whether the deceased died with a valid will, and thereafter, administering the deceased’s estate. Delays can not only be financially stressful but can also keep families in a state of limbo, exacerbating emotional turmoil. This is an especially high risk for estates that are valuable or that require the management of a lot of different assets.

The emotional and financial consequences for executors, beneficiaries and loved ones can include:

• Financial stress: the longer the probate process takes, the more financial strain it places on the estate and, by extension, the beneficiaries. Assets might be frozen during probate, preventing access to funds that are needed for ongoing expenses like maintenance of properties, payment of debts and other obligations. An executor may need to pay certain costs out of their own pocket and claim these back from the estate later, which can introduce further complications.
• Emotional turmoil: delays can exacerbate emotional stress and create tensions among family members during a time of grief. This may even result in disputes that could have been avoided with a smoother, faster process.
• Market fluctuations: assets such as shares in companies, property and other investments are subject to market fluctuations. Delays in probate can mean missing out on favourable market conditions for liquidating assets or transferring them as outlined in the will. This reduces the value of the estate to beneficiaries.
• Tax implications: a delayed probate process may also result in missing critical deadlines for tax filings, leading to penalties or other consequences.
• Opportunity costs: every month that the probate process is delayed could mean lost opportunities for investments or other financial decisions that could benefit the estate or its beneficiaries.
• Erosion of value: a lengthy probate process can result in the erosion of the estate's value due to factors such as depreciation of assets, missed business opportunities or additional legal costs that accrue over time.

Common Causes of Probate Delays

Understanding the common factors that contribute to delays can help you better prepare and possibly avoid the various pitfalls that come with applying for probate. Some of these delays can be avoided by the executor, and choosing the right person to act in this capacity can make a big difference in ensuring the probate process runs smoothly.

Other potential delays can be foreseen at an earlier stage and accounted for by the testator - the person who is writing the will. Here are some frequent causes of probate delays:

• Lack of a will or an outdated will: one of the most common reasons for probate delays is either not having a will or having one that is outdated. An ambiguous or outdated will can result in significant delays due to the legal scrutiny needed to execute it correctly, and the potential for disputes among beneficiaries.
• Inaccurate or missing documentation: the absence or inaccuracy of essential documents, such as bank statements, property deeds, or investment papers, can stall the probate process. It can take weeks, or even months, to sort out these discrepancies.
• Complexity of the estate: the more complex an estate is, the longer the probate process can be. Multiple properties, business interests and foreign assets can all complicate matters, and require more time for accurate evaluation and distribution.
• Legal challenges or disputes: disputes among family members or potential beneficiaries can result in court cases that drastically slow down the probate process. This is especially relevant for those who may have more stakeholders involved - but any ambiguity as to the authenticity of the will or the intentions of the deceased can lead to a contentious probate situation.

How to Avoid Probate Delays

As a testator, making sure everything is properly organised before your executor needs to apply for probate can help you to ensure the process goes smoothly. Here are a number of tips you should consider:

• Draft a clear, comprehensive will: consult experienced legal professionals who can help you draft a will that leaves no room for ambiguity.
• Keep your will and documents updated: life changes, and so should your will. Whether you have acquired new assets, gotten married or gone through a divorce, keep your will updated to reflect these changes. Similarly, all other essential documents should be updated and kept in an organised manner for the ease of your executor.
• Utilise trust structures: trusts can be an effective way to streamline the estate administration process. By placing assets into trusts, you may avoid the need for these assets to go through probate and thus speed up the overall process.
• Communication with family and executors: open and clear communication with your family and chosen executors can help in predicting issues that might otherwise lead to disputes or legal challenges. Make sure that everyone understands the provisions of the will and the reasoning behind them, to reduce the risk of misunderstandings later on.
• Seek professional advice: estate planning and probate involve complicated legal and financial processes and decisions. You should not attempt to handle any complex legal process without the help of specialist wills and probate solicitors.

What to Do About Delayed Probate

At JMW Solicitors, we offer comprehensive services in wills, trusts, tax and succession planning tailored to meet the needs of those with estates of all sizes. If you are struggling with any aspect of probate, seek legal advice as soon as possible and we will work to help you navigate your situation. Alternatively, seeking legal advice early in preparation for your death or that of a loved one will help you to avoid issues and mistakes that could make obtaining probate take longer.