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Can I apply for probate myself?
When dealing with a loved one’s estate during a stressful time, attempting probate on your own can be risky. Isabelle Gulliver, a Paralegal in WSP Solicitors’ Private Client Department specializing in Wills, Trusts, and Probate, will shed light on the potential pitfalls of DIY probate and guide you on when it’s essential to seek legal advice.
What is probate?
Probate is the process where an executor must prove that the Will is valid (if there is one) and confirm who has the authority to administer the estate of a deceased person.
At the end of this process, the executor is provided court-sealed copies of a Grant of Probate, the legal document confirming this authority. An original or certified copy is provided to conveyancers, estate agents, financial institutions, or investment managers when dealing with the assets of the deceased person.
Understanding the process.
When you are considering applying for the Grant of Probate without the help of a solicitor, the executor(s) need to bear in mind that it is a complex procedure, and they are liable for any mistakes. While administering the estate, the basic outline of the process is:
- Collecting the values of the assets and liabilities held in the deceased’s name.
- Declaring whether inheritance tax is due to the estate and if required, pay the inheritance tax that is due.
- Apply for the Grant of Probate.
- Receive the Grant of Probate.
- Open an executor’s account and cash in any monetary assets. This is to ensure clarity on what has happened with the funds.
- Settle any outstanding liabilities.
- Distribute the estate as stated in the Will.
When applying for the Grant of Probate there are technically no deadlines for applying.
However, the deadline you need to be aware of, is that the inheritance tax (if any is due) needs to be paid 6 months before from the end of the month after the date of death. This means if the deceased passed away on the 7th of September 2023, the executor has until 6 months from the 30th of September.
If you leave the inheritance tax any longer than this, HM Revenue & Customs (HMRC) can and will charge you interest and late payment penalties up to £3,000.
Most estates take around a year to administer, however, this is dependent on the size and the complexity of the estate. Common delays are caused by third-party backlogs, such as HMRC and the Probate Registry.
Do I need a probate solicitor and what are the risks if I don’t?
Instructing a Probate Solicitor is not a requirement (unless a Solicitor’s firm is appointed as executor in the Will) but a personal choice. Executors should consider the following risks that come with undertaking the probate process themselves.
- The executor can be sued by beneficiaries if they feel that the executors are not acting in the best interests of the estate. Beneficiaries are entitled to obtain independent legal advice regarding their position in the estate. This can lead to claims being made for lack of financial provision or that they disagree with how you are managing the estate. Receiving letters from a beneficiary’s solicitor can be a daunting experience and you should seek legal advice if this happens.
- The executor is responsible for valuing the estate. If this is undertaken incorrectly, you will be personally liable for any mistakes.
- If there is a claim from an unknown beneficiary after the estate has been distributed, the executor would be personally responsible for the claim, if it is successful.
- A complex Will may cause complications, sometimes clauses are not clear, and if there are ambiguity over wordings in the Will, it can be interpreted incorrectly and cause issues down the line.
When to seek legal advice?
The executor should seek legal advice when there complicating factors which may prevent them from dealing with the estate, this could be;
- Minor beneficiaries (under the age of 18)
- If the deceased owned Foreign Property
- Any Trusts
- If the deceased had any business interests
- Complex family dynamics
It is important to remember that obtaining the Grant of Probate is only one step when dealing with estate administration. Call one of our offices in Gloucester or Stoud today to obtain advice regarding our estate administration services.