Do I need a solicitor for probate?
10th Apr, 2018
When a family member dies and leaves what appears to be a very clear will, it could certainly be assumed that the probate process will therefore be very straightforward.
However, probate is often more complicated than many people realise.
What is involved?
To deal with the estate (assets and liabilities) of someone who has died, it is usually necessary to take out a Grant of Representation. This is issued by the Probate Registry either as a Grant of Probate (where there is a will) or as a Grant of Letters of Administration (where there is no will).
Following the grant, it is the responsibility of the personal representatives (also known as the executor or administrator) to ensure that any liabilities are paid. It is worth noting here that many people presume that debts are written off following the death of an individual but this is not the case.
The remainder of the estate is then distributed according to the terms of the will or, in the absence of a will, according to the law as set out by the intestacy rules.
If applicable, inheritance tax will also need to be calculated and submitted.
How straightforward is the will?
If the will is a simple one, for example, where a surviving spouse inherits the entire estate then, yes, it may be possible to go down the DIY route. However, you should be aware that the Probate Registry will not provide you with legal advice. Your circumstances may seem simple but it can easily become more complex, for example if there are children from previous marriages.
In the case of a more complex will, perhaps with a number of beneficiaries, including provision for children or otherwise establishing trusts, it is unlikely that an executor would want to go it alone.
Similarly if you are an executor who is not one of the main beneficiaries under the will, then the simple answer is ‘no’ you should not go at it alone because of the substantial financial risk which will arise as a result of your role as an executor.
Sadly it is not uncommon for family circumstances to be difficult or complicated, and if the relationship between the beneficiaries is strained then it is better to have a neutral third party like a solicitor involved to ensure swift administration of the estate without any further breakdown of relationships or mistrust. Should there be a breakdown of trust then the estate could be held up requiring court intervention before any monies can be paid out from the estate to beneficiaries.
What about inheritance tax?
Does the estate attract any inheritance tax? If so, do you feel able and have the time to complete all the relevant HM Revenue and Customs forms? It may also raise some complex issues about previous (lifetime) gifts that now need to be brought into account.
Beneficiaries may place pressure on you to accept reduced values, rather than professional valuations, in order to reduce the estate’s liability to pay tax. To do so would place you, as executor, at risk of investigation and at personal financial risk.
This can be a very complicated process, often resulting in a very large payment due to the Revenue. This must be paid before you can apply for a Grant of Representation and formally access estate funds. Getting the calculations wrong could be very costly.
Is there likely to be a challenge to the will?
Wills are sometimes subject to challenges from people who expected to benefit, or expected more of a benefit under the will. A claim may be made, e.g. by a spouse or partner, or by a child including a child of a previous marriage or relationship. Alternatively, there may be issues arising to the validity of the will – Is it the most recent one? Were they in sound mind when they made it?
In these circumstances, you should always seek advice from a solicitor as early as possible who will be able to advise you on the best steps to protect yourself.
Do you really want to deal with it all at an emotional time?
It can be hard to deal with the formalities of administering an estate especially at a time when you are grieving. Handing over the responsibility to a solicitor can remove pressure and give you the space you need to come to terms with a loss and new circumstances.
As well as all the legal formalities, there are the practical requirements. For example, Executors are responsible for securing the property of the Estate. It may be necessary to arrange for locks to be changed to prevent unauthorised access and also to order to comply with Insurance requirements. This can be an emotional issue as family will feel that they have the right to enter the property and help themselves but as the Executor you need to take control.
Many executors do not realise that they have the right to seek legal assistance and for that assistance to be paid from the Estate. Solicitors can offer different levels of service either on a fixed fee or fee capped basis. Therefore, try not to bow to any pressures to ‘DIY’ to save costs, as in the long run you are the one at financial risk not all the beneficiaries.
What else might you need to think about at this time?
It may be advisable, due to the change in circumstances, to consider updating your own will and granting Powers of Attorney so that someone can assist you with your affairs when you are no longer able to do so. It may also be a good time to review your own tax and estate planning, including your investments, to make sure your money is working the best for you.
Matthew Rose, solicitor