12th Nov 2014

We often receive inquiries from heirs of estates, who are frustrated over delays in the administration of those estates. Sometimes, the estates have been in the probate process for several years and yet distributions have not been made to heirs and the estate is still open.

There can be many reasons for delayed administration, but they are usually explanations and not excuses. In the first year following death, two important events occur with respect to an estate. First of all, the estate tax return is required to be filed within nine months of the date of death. Quite frequently the filing of the estate tax return is delayed because either (a) certain assets cannot be located; or (b) assets that have been identified (e.g. real estate, business interests) need to be appraised. Secondly, any creditors of the estate (i.e. persons or businesses who claim that the decedent owed them money) have one year from the date of death to bring a lawsuit against the estate. Personal representatives of estates are therefore required to wait until at least that one year period has expired before making distributions.

Even in the face of these limited requirements, administration can often take longer. However, the most frequent causes for delayed administration can be placed in three broad categories:

1. Personal representatives who try to administer estates without the assistance of an attorney;

2. Busy attorneys who make the estate a low priority; or

3. Personal representatives who have a financial incentive to delay administration.

The third category is the most common among the three.  Often, the decedent dies owning property, and the personal representative decides to move in after the decedent’s death, or to continue living there, quite often with no need to make a mortgage payment.

So if you’re an heir who has been waiting patiently for your inheritance, what can you do? If you haven’t hired an attorney to represent your interests, you should do so immediately; you would be amazed and encouraged by how the presence of an attorney can “stir the pot” and accelerate administration. Beyond this, you or your attorney can petition to remove the personal representative, file a petition to compel the rendering of an inventory and accounting of the estate, and/or file a petition to compel the sale of estate assets such as real estate. All of these are fairly inexpensive options, with the exception of the petition for removal, which can be quite contentious. However, petitions for removal often can be used as “leverage” to spur action in administration and are helpful in the making of concessions regarding the sale of assets and the filing of the inventory and account.

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