Thankfully, most people do not have to administer more than one estate so many begin the process with ‘probate’ being another piece of legal jargon they have heard of but do not fully understand.
It is not unreasonable to question whether you actually need a solicitor to help you through the process. We will explain below why we think our service is worthwhile.
A Grant of Probate is formal proof from the courts that you are entitled to administer the estate of the deceased (see what is probate). It is possible for you, as an executor, to obtain the grant and administer the estate yourself. There is a fair amount of information available on the internet to help with the process, which many people do successfully.
However, there are various things to consider before deciding whether to handle the process yourself or not. It will be necessary to learn about the process and research the specific factors required for your case. This can be a time-consuming activity before you even begin the process. We are seeing more people begin the process and then come to us because they have run into difficulty, with deadlines fast approaching.
We aim to ensure our probate service is good value for money and that our clients get the customer service that we ourselves would expect from a company. This means executors have access to expert advice and years of experience without spending large parts of the estate.
With that in mind, and without trying to scare you off, we feel it's important that you consider the full implication of the role before taking on the responsibility of dealing with an estate on your own. Below is a list of things to consider before setting out on your own:
- There are onerous responsibilities arising from acting as an executor. You are entrusted to deal with what can be large sums of money. As an executor you have an obligation to discharge all debts and liabilities which the deceased had, even if you do not know about them. For details of the kind of enquiries you must make, see Duties of Executors.
- Do you understand the will? The law relating to wills, their execution and what they mean has developed over hundreds of years. It is fundamental that you understand that law to be able to administer the estate successfully. As an executor you are personally liable for compensating any beneficiary who has lost out if, for instance, a will was not amended properly but the executor follows it anyway . The fee for our service includes a full review of the will.
- There is a possibility for the will to be varied after death. This can happen if all the beneficiaries agree and it is in all their interests to change it. You can ask us to review whether this is a possibility as a part of the process.
- Complexity. Aside from deciding what avenues to pursue, the process requires returns to be made to HMRC. With even simple estates, these can be numerous (over 23 separate forms). You need to consider whether you have the time and knowledge to do that. When was the last time you volunteered to complete a tax return?
- Time-consuming. Details of the assets and liabilities must be obtained together with the collation of information needed for the calculation of inheritance tax or determining whether inheritance tax is in fact due. An experienced professional knows how to undertake the process quickly and efficiently.
- Personally liable. As executor you are personally liable for any mistakes or incorrect distributions.
- Independent. A solicitor is independent of the beneficiaries and can help manage conflicts between the beneficiaries.
- Specialist legal and tax knowledge. The probate process comprises numerous reliefs, allowances and write downs to calculate correctly the amount of inheritance tax that is due (or not as the case may be). An experienced professional knows how these work to minimise the amount of inheritance tax payable. The amount of tax saved may far exceed the professional fee charged.
- Complications. There may be issues with the validity of the will, the will may be contested, there may be trusts set up in the will, which have their own specific tax and legal rules; there may be overseas property which does not pass under the UK will or the estate may be insolvent. These are just some issues that could make the process extremely troublesome to the DIY executor.
- Protection. All client monies are held in a protected client account. Our solicitors are covered by professional indemnity insurance.
Before committing yourself to the process, why not talk to us about your individual circumstances.
Solicitors are just one type of lawyer and among a range of organisations which carry out probate related work.
Here is a list of some of the reasons why we believe you should always use a solicitor for probate activities:
Solicitors are required to undertake at least four years of university study and two years’ training before being allowed to take responsibility for a client’s matter. That training has to be provided by someone with at least three more years’ of experience after qualifying. Alongside that, most firms have years’ of experience passed down from solicitor to solicitor.
All solicitors are vetted before they are allowed to train and again before qualification. We are subject to many stringent rules governing our relationship with our clients, other professionals and members of the public. If you have a complaint against a solicitor there is a government appointed legal ombudsman who can investigate the complaint and, if they find that the solicitor has not acted in as professional way as they should, has the power to award compensation to the client.
But the regulation and cover goes further: if a solicitor should suffer an accident, the regulator – the SRA – has the power to step in and ensure that the firm’s clients are not affected. How many of the unregulated firms offering probate services had ‘disaster recovery plans’ as solicitors are now required to?
As much as professionals don’t like to admit it, everyone makes mistakes sometimes. Most of the time they are small, very occasionally they can be big. At Probaters we are required to have £3,000,000 worth of insurance cover at all times for our clients, which means should the worst happen, you know you’re covered.
The law and your personal liability
Some aspects of the law of England and Wales are simple, including parts of the probate process. However some are incredibly obscure, with the correct course to take being affected by statutes from a hundred years ago, amended fifty years ago, amended last year, subject to changing interpretation in the courts etc.
There is not yet a free, authoritative source of the law available to the public, though there are various very good places to look, particularly on issues like landlord and tenant law.
However even the very good guides can rarely go beyond the basics, you can’t ask them questions and often you have to know what you’re talking about to know the information is correct.
Under the law of England and Wales, not knowing the law doesn’t stop you breaking it. As an executor you are given both rights and responsibilities; you attract personal liability if you do not fulfil them. Do you know, for instance, what happens if someone leaves a gold watch to someone in their will but sells it before they die? What about all of their gold watches? Or shares in a bank? See ‘what is included in the estate?‘
Find out how affordable a professional probate service can be.
Call us on 0845 034 7344 for more information