Receiving an inheritance under a will should be a straightforward process, but it can become complicated if you’re a beneficiary who has not yet received your due share. This guide aims to provide essential steps and legal guidance for beneficiaries in such situations, ensuring you have the knowledge to assert your rights and claim your inheritance.
Understanding your rights as a beneficiary
As a named beneficiary in a will, you are legally entitled to receive what has been bequeathed to you. The executor of the estate is legally bound to ensure that the distribution of assets, including money, takes place in accordance with the terms of the will.
Identifying potential reasons for non-receipt
Several factors may delay your inheritance:
- Delays in probate: Executors are typically expected to apply for probate within three months of the deceased’s passing. Once the application is made, it can take up to 12 weeks for probate to be granted. If there are issues with the application, this timeframe could extend further. During this period, assets, including money, cannot be distributed.
- 6-month waiting period post-probate: After probate is granted, executors are generally required to wait for a further six months before distributing the estate’s assets. This waiting period allows for any claims against the estate to be brought forward.
- Claims against the estate: Before assets can be distributed, all claims against the estate must be resolved. These claims could stem from creditors, family members, disputes over the will’s validity, or other legal challenges.
- Estate debts: Debts and liabilities of the estate take priority and must be cleared before any distribution to beneficiaries. This might impact the amount available for distribution, especially if the estate has insufficient funds to fulfil all bequests. Learn more about what happens in such situations here.
- Executor mismanagement: In some instances, delays in receiving an inheritance can result from the executor’s failure to manage and distribute the estate’s assets efficiently and within a reasonable timeframe.
Proactive steps for beneficiaries
- Communicate with the executor: Initially, reach out to the executor for updates. There is a presumption that executors will provide beneficiaries with a copy of the will and an inventory and account of the estate upon request, so ensure to ask for this information.
- Review estate documentation: It’s important to understand the will’s specifics and the estate’s financial status. Check to make sure the estate’s accounts reflect your understanding of the deceased’s financial position, and request further information if things don’t add up.
- Find out whether probate has been granted: As explained above, one of the steps that an executor must take in all but small estates is to apply for probate. If an executor is not responding to your requests for information, one step you can take without having to see a lawyer is to find out whether probate has been granted. After the High Court issues an order granting probate, or letters of administration in cases where there is no will, this order is entered into public court records. This makes it accessible to anyone who wishes to view it. To access the grant of probate, you can submit a request to the Wellington Registry of the High Court. Be sure to provide the full name and address of the deceased, along with the date of their death. There is an administrative charge of $30 for processing the request.
Seeking legal advice
If your initial attempts don’t bear fruit, legal advice becomes crucial. An estate law specialist can assist with:
- Demanding distribution: Your lawyer can formally demand that the executor provides you with information about the estate and distributes your inheritance. A well-written lawyer’s letter is frequently all that is needed to get the process moving.
- Taking legal action: In cases of continued non-cooperation or mismanagement by the executor, your lawyer assist you with taking legal action.
Legal recourse for beneficiaries
- Protecting your interest in the estate: If the executor, or anyone else, is in possession of property that was supposed to go to you under the terms of the will, a claim can be made to recover this property.
- Applying to remove the executor: If the executor is not fulfilling their responsibilities, beneficiaries have the right to apply to the court for their removal and for the vesting of the estate in a new executor. The guide on removing an executor provides practical steps and legal considerations for those seeking to replace an executor.
- Executor accountability: Executors can be held personally liable for failing to properly manage the assets of the estate and for distributing assets contrary to the will’s terms. The comprehensive guide to executor misconduct claims offers detailed insights into the duties of executors and the claims that can be made when they breach those duties.
Safeguard your rights
Ensure your rights are protected during this process:
- Maintain comprehensive records: Document all interactions, correspondences, and attempts to resolve the issue with the executor. This includes saving all emails and letters, and making notes from conversations.
- Notify recipients of wrongly distributed property: If you discover that property or assets you are entitled to have been wrongly distributed to others, contact them in writing to put them on notice of your entitlement. This action can help in reclaiming the property or asset.
- Place a caveat on property: If your inheritance includes real estate, consider placing a caveat on the property. This legal notice acts as a formal warning and prevents the property from being sold, or a mortgage being registered against the property, without your knowledge.
- Be aware of limitation periods: Understanding the limitation periods related to potential legal actions is critical. These periods define the timeframe within which you must initiate legal proceedings. Failing to act within these limitation periods can significantly restrict your legal avenues and potentially impact your ability to assert your rights as a beneficiary.
Additional resources
For more information on executor duties and timelines, check out the article on how long an executor has to settle an estate. If you suspect executor misconduct or need guidance on removing an executor, the comprehensive guides on executor misconduct claims and how to remove an executor offer valuable insights.
