David Smith, Solicitor and Head of Private Client at Sweeney Miller Law discusses Probate and the dangers of doing this yourself.
Firstly what is Probate?
If the deceased left a valid Will then depending on the assets held by the deceased a Grant of Probate may need to be obtained by the executors named in the Will. If the deceased did not leave a valid Will then again depending on the assets Letters of Administration may need to be obtained by the persons entitled to the estate under the Intestacy Rules. In most cases obtaining Probate or Letters of Administration is an administrative process run by the Probate Registry which is part of the Family Division of the High Court.
So if I am appointed as an executor in the Will should I deal with the estate myself?
As an executor you need to fully appreciate what you are letting yourself in for and the financial risks you are exposing yourself to when deciding to do the work yourself or to instruct a Solicitor who is fully conversant with the complex legal framework that applies to Probate & Estate Administration.
I didn’t appreciate that Probate & Estate Administration is such a complex area of law covered by so many different statutes and individual decisions of the Courts – please tell me where can things go wrong if I do the work myself?
One of the most common things is that all debts of the deceased are not identified and paid out of the estate before it is distributed to the beneficiaries. If this is the case then the executor can be held personally liable for the unpaid debts of the deceased however this can often be avoided if a Solicitor had been acting on behalf of the executors in the administration of the estate. Similarly if an asset is sold by the executors at a price below the market value then the executors may be held accountable to the beneficiaries for disposing of an asset below market value.
Another common situation can occur when an unknown beneficiary comes forward after the estate has been distributed and claims their share of the estate again the executor may be personally liable to make good this situation from their own pocket and this could, depending on the size of the estate amount to tens or possibly hundreds of thousands of pounds.
Also Inheritance Tax is a complicated area and needs to be dealt with correctly by the executor and again if this is calculated incorrectly the executor may be personally liable to pay any additional tax due to HMRC from their own pocket.
That sounds like a lot of risk to my personal wealth – what else can go wrong with DIY Probate?
Often we see that family relationships can already be difficult prior to the death of the family member and you may not wish to have to communicate with someone you may have already fallen out with so using a Solicitor will take this pressure off you. And also we find that DIY Probate can lead to a breakdown of family relationships due to executors carrying out Probate themselves.
This breakdown is often due to the length of time it takes to obtain Probate and then to administer the estate leading to disquiet and disharmony between executors and beneficiaries. This in turn can put pressure on the executor and they can then be tempted to cut corners and perhaps pay money out of the estate too quickly. An unknown debt is discovered without the executors having sufficient funds to pay it or selling an asset at below market value just to speed things up due to perhaps the constant harassment of a beneficiary. Also as mentioned before due to the pressure the executor pays out the estate to the beneficiaries and then an unknown beneficiary appears some time later and there are no funds left in the estate and disaster strikes.
This is all common and leads to mistakes by the executor and opens the door to personal liability and also can create new disputes within families or make existing disputes worse.
After reading this I am now convinced I don’t want to obtain Probate or administer the estate myself – what do you advise?
That is just a flavour of the risks involved in DIY Probate I could go on! Solicitors are authorised and regulated professionals who as a profession have been dealing with Probate & Estate Administration for hundreds of years. As executor it is your choice alone to instruct a Solicitor to carry out this work on your behalf thus removing all of the risks outlined above. The costs of an experienced Solicitor in carrying out this work often amounts overall to a small percentage of the total value of the estate and an estimate of the Solicitors costs should be provided free of charge once details of the assets and a copy of the Will have been produced to the Solicitor.
