Do I really need Probate Solicitors?
Probate solicitors often specialise solely in Wills, Trusts & Estates due to the complex nature of probate law. That’s certainly the case with our 12 strong private client team. As a result of this, the benefits of employing a probate solicitor are far reaching.
A probate solicitor deals with many situations from challenging a will on behalf of a beneficiary and obtaining grant of probate, to complex inheritance tax calculations. Due to the emotional and stressful nature of this area of law many people seek the services of a lawyer instead of trying to deal with the probate on their own.
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16 Key Reasons To Use A Solicitor for Probate
Taking on managing the probate process can be a really tough task .It’s important to think seriously about what it involves before deciding on DIY probate. Here are some of the key things to think about before making your decision:
1. Complexity – leaving to one side the topic of what path to follow, the probate process means dealing with HMRC. Even when the estate is simple there are as many of 23 forms which have to be completed and submitted, and you must consider whether you have the time and energy to do this. Trying to deal with probate yourself can get even tougher when you are trying to resolve complex issues, or wills involving a home overseas or a business.
Even if the deceased’s affairs appear to be fairly simple, you still need to have a clear understanding of how the process works, and what an executor can do to reduce their liability.
Click here to read more about the risks of DIY probate
2. Understanding – It’s your responsibility as executor to make sure you understand all of the legal jargon in the will and carry out the wishes. If you get it wrong (for example by carrying out wishes in an incorrectly amended will), then you’re personally liable for compensating a beneficiary who has lost out.
And if you don’t think you understand enough about probate to deal with estate administration yourself, then you’re not alone. A 2021 survey by financial services company, Ampla, found that just 11% of Britons felt that they had sufficient understanding of how probate works to complete the process.
3. Getting the distribution of assets wrong – The executor is personally liable for any mistakes made or for distributing the funds incorrectly. There is a particular risk in not fully declaring the assets. Even small estates could have complicated financial assets like land where planning permission was being considered or discounted gift trusts. The executor’s job is to first identify all of the assets which were held by the person who died, and then declare them to the authorities.
And identifying assets isn’t as easy as you might think. As a good example, the survey mentioned above by Ampla, found that only 24% of children know who their parents banked with, let alone how many accounts they held
If this is not done properly and assets are either not declared at all or are not fully declared, large penalties are often applied by HMRC. This can lead to accusations of potential fraud, and huge stress for everyone involved.
4. Getting tax issues wrong – Tax in general, and inheritance tax in particular, involve a very complex area of the law. There are many different reliefs and exemptions which can be claimed, such as charity exemption, normal expenditure out of income and agricultural and business relief. Changes to the tax laws also mean that in some circumstances you can carry forward a nil rate band, and if you sell some types of asset within given periods at a loss compared with the value at the person’s death, you might be able to claim back tax.
You can’t rely on HMRC to help you calculate the right tax payments. They will not tell you if you are not claiming every relief you are entitled to. If a beneficiary realizes you’ve made a mistake and not claimed what you’re entitled to, they are well within their rights to sue you.
Did you know, for example that inheritance tax needs to be paid within six months of death? Or that if you don’t have the cash available to meet any inheritance tax payments, there are additional finance options out there which can be used to pay any inheritance tax due?
5. Failing to pay Debts – As well as assets, it’s not uncommon for people to leave debts behind them as well, and it’s the executor’s job to find out what the debts were. Solicitors dealing with estates can take legal steps to make sure that executors do not become personally liable for debts which come to light at a later date.
Running into problems is easy and common. As an example, an executor dealt with an estate which included an insurance payout which had been paid to the deceased several years before. Further down the line the insurance claims was declared invalid, and the executor was faced with having to pay back all of the money to the insurance company as the beneficiaries no longer had it. It’s very easy to avoid these sorts of scenarios with proper legal advice from an experienced wills and probate solicitors.
6. Your Responsibility – The executor has to take responsibility for what are often large sums of money. It’s their job to deal with all of the debts and liabilities due by the person who died, even if they are unaware of them.
7. Varying the will – It is possible to vary the terms of a will after someone who has died as long as everyone agrees and it’s in the interest of all parties. A DIY executor can often get this sort of issue wrong, or even miss it totally.
8. Stress – The executor has the job of collecting together the estate and dividing it up, usually at time when they are least able to cope with the additional responsibility and stress as they’re coping with bereavement – usually of a loved one or close relative.
9. Time commitment – There is a lot of work involved with most estates and it will take a considerable time to manage. A good solicitor knows the best ways to get the process done effectively and without delay. There is also the risk that a slow DIY probate could cost you money as delays in paying any inheritance tax for example might result in additional charges.
10. Pressure – The people who stand to benefit from the will often don’t understand the complexities of probate and just want their cash as soon as possible. Giving into that pressure and paying beneficiaries early on can cause huge problems at a later stage, especially when the estate isn’t worth as much as initially thought.
11. Conflict – Disputes between executors and beneficiaries are becoming more common. Do you really want to get into arguments with people who are probably your relatives, friends and loved ones?
12. Independence – A solicitor is neutral and is therefore well placed to manage any conflict which arises between beneficiaries.
13. Knowledge – Leaving the legal issues to one side, how’s your knowledge about tax rules? Are you up to date and do you fully understand about reliefs, allowances and write-downs? You need to be in order to calculate the amount of inheritance tax correctly. A good solicitor will know how all of this works to keep the inheritance tax bill to a minimum. In some estates, the solicitor’s fee will be far less than the amount they can save you in tax.
14. Probate Contests and Will Disputes – We are living in a society where we’re increasingly happy to sue each other. That means that inheritance claims, contesting wills, and disputes between executors and trustees are more common too. A DIY probate therefore carries the not insignificant risk of being sued.
Click here to read more about contested probate.
15. Protection and Insurance – Client money is always held in a ring-fenced account when you are dealing with a probate solicitor. If a DIY probate goes wrong and an individual makes a mistake, then your only option is to sue, provided of course that they have enough money to pay compensation. In contrast, solicitors have to have a minimum of £2 million in indemnity insurance, and many have more than that. They are therefore better placed to pay any compensation due.
16. Involvement – Solicitors don’t have to do everything, and it’s fairly common for them to agree to undertake some but not all of probate work, leaving you the scope to get involved to some degree but not having the responsibility of the whole thing.
Often the deceased will appoint an experienced family member to be an executor of the will, the appointment may also be made alongside a named solicitor. If not however, then the executor should find probate solicitors to help him distribute the assets correctly and pay any UK inheritance tax as necessary. The repercussions of intermeddling in a deceased person’s estate and making mistakes are quite severe, therefore a lay person often seeks legal advice to protect themselves.
Another common situation, in which solicitors are appointed, is where a person dies intestate (ie without leaving a valid will). The family of that person then seeks the advice of a probate solicitor as to the laws on intestacy. Conversely where the deceased has left a will that either a beneficiary or family member is unhappy with, a probate solicitor can then help that person with contesting a will.
Click here to find out more about how our probate solicitors can help you.
Time Constraints
Obtaining probate and distributing a deceased person’s estate must be completed in a timely manner; often executors of complex estates struggle to complete all the necessary returns and distributions promptly. This can leave the executor open to personal claims from the beneficiaries for any losses incurred to the estate. As mention above, executors should seek legal assistance in order to protect themselves from such inheritance claims.
Hiring an experienced probate lawyer early when applying for probate, will not only ensure that any inheritance tax is paid promptly and therefore avoiding interest charges from HMRC, it will also ensure that beneficiaries are checked and the executor is not succumbing to their pressures. A solicitor can bring order to an administration of an estate, which when dealing with a lot of money can be invaluable.
If you find yourself acting as the role of an executor of a will, consider whether or not you would benefit from seeking legal advice from an experienced probate solicitor. As a primary concern consider whether or not you will struggle with the responsibilities involved in distributing an estate whilst managing your own everyday life. Employing a solicitor can help provide you with peace of mind that the estate is being handled professionally.
Click here to read more about the role of an executor.
Do make sure that any solicitors you appoint is a specialist in probate and inheritance tax – which is simply too complex an area of law to leave to someone without expertise.
Online or face to face probate solicitors – we are here to help
If you live in a rural part of the country without easy access to legal specialists, or you are a UK expat who has been appointed executor for a deceased person based in England or Wales, our specialist probate solicitors can help you – taking instructions by email, phone and Zoom video calls.
Click here to read some Client Reviews of our Wills and Probate Lawyers
