One questions we are often asked is – ‘Can I deal with probate myself?’ Whilst many people instruct a Solicitor to deal with the estate of a deceased family member or friend, a few people choose to take on the responsibility of dealing with the estate themselves with little knowledge of the responsibilities and the risks involved. The main reason for this is to avoid paying for professional advice and assistance. Professional fees are paid by the estate.
As an Executor (the person appointed in a Will to administer an estate) or Administrator (if the deceased left no valid will), you should consider the various risks before you decide to proceed without professional assistance. Probate is not always required to deal with an estate, however estate administration is always required. Probate provides the Executor or Administrator with the legal right to carry out the estate administration (to deal with property, money and all assets).
Some of the risks of dealing with Probate yourself:
You would need to take extra care particularly if you are not familiar with the estate because as an Executor you could be personally liable for debts due to HM Revenue and Customs (HMRC) and potentially any creditors. If matters are dealt with correctly then the Executor will not be liable to pay for debts when there are insufficient assets in an estate.
If a beneficiary feels that as an Executor, you have sold a house less than the true market value or you have mismanaged assets then you could be liable to the beneficiary for this loss. As an Executor you will not be able to plead ignorance as a defence should a beneficiary or creditor make any claims against the Estate.
What tasks are involved in dealing with probate yourself?
Each Estate will vary and therefore there will be different requirements that need to be dealt with. Some of the things an Executor needs to do or consider are:
- Obtain valuations for the assets and liabilities in an estate.
- Apply for the Grant of Probate or Letters of Administration including dealing with inheritance tax forms. (It is important to get these forms correct to avoid the Probate Registry rejecting them or HMRC querying or imposing penalties as this only causes considerable delays.)
- Close banks accounts, dealing with shares, life insurance policies, investments, pension providers, utility companies, local authority and selling property and paying off all liabilities.
- Account for all the assets and liabilities in the estate to include settling all liabilities before distributing the estate. If this is not done correctly or if a debt is missed because you were unaware of it, you would be personally liable unless you place a notice in the London Gazette and local newspaper (Section 27 of The Trustees Act 1925).
- Deal with Income Tax and Capital Gains Tax.
- Hold off distributing the estate for a certain period if there is a risk of a claim against the estate under the Inheritance (Provision for Family and Dependants Act) 1975 which allows particular categories of individuals to apply to the Court to make a claim against the estate for adequate financial provision to be made for them.
- Prepare detailed estate accounts setting out all the assets and liabilities as at date of death, details of any income and capital and any monies paid out by the Executor to deal with the estate for example, funeral costs, tax, liabilities and any expenses.
Why instruct a Solicitor to deal with Probate?
These tasks all take a lot of time, consideration and effort during what can be a difficult time. Solicitors have the necessary experience as this is what they deal with on a day to day basis. A Solicitor can also assist you in getting the grant of probate and depending on the complexity of the estate, you may feel comfortable dealing with the administration of the estate. This means you can pay for work you require. As an Executor or Administrator, you are personally liable for any errors made during the process, including completing tax returns and legal paperwork which is why many people prefer to appoint a Solicitor to take on this responsibility because if there are any errors in the administration you would be protected by the Solicitor’s indemnity insurance.
If you would like to discuss how we may be able to assist you, please contact any member of our team or complete our enquiry form online and a member of our team will be in touch with you.
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