Probate – Can I do it myself?
18th Jun 2020
It has recently been well publicised that applications for a grant of probate can now be submitted by individuals online. We have found that this, along with the constant threat of an increase in probate fees and a raft of online ‘how to’ guides, has lead to more and more people questioning – why do I need a solicitor, can’t I just save money and do it myself?
Before you proceed to start dealing with an estate yourself it is worth considering what the extent of your responsibility and liability is in your role as executor and what are the risks you’re undertaking.
Firstly, do you understand what the Will says? Are you able to contact all the beneficiaries? Does the Will create a trust? Is the Will even valid? How would you know if it wasn’t? For anyone who isn’t used to reading and writing Wills understanding the terminology used can be difficult, a misunderstanding could lead to you being liable to a disappointed beneficiary.
If there isn’t a Will how do you work out who is entitled to what under the rules of intestacy? How do you contact distant family members or protect yourself against missing beneficiaries?
While an application for a grant of probate can, in certain circumstances, be submitted online this doesn’t mean that the process is any simpler than it was before. You are still required to give a full account to the HMRC about all assets and debts. Are you aware of all tax allowances available? Do you fully understand the implications of gifts the deceased may have made in the past 7 years? What about annual premiums on life policies or pension annuities, are you able to account to the HMRC about these in full detail?
Once you have obtained the grant it is important that all debts are settled before the estate is distributed. Executors are responsible for ensuring the estate pays any income or capital gains tax that might be due along with all other debts. If any debts are missed and become apparent once the estate has been distributed, as an executor you remain personally liable for those debts regardless of whether you are able to access estate funds or not. How can you be sure all assets and debts have been dealt with? How can you protect yourself against any unknown debts of the deceased?
As an executor you can be held liable for any mistakes you make or for acts you fail to complete. How can you be sure you have done everything you need to? How do you deal with a beneficiary who is pushing you for funds before you feel ready to distribute? What about if a beneficiary wants to take ownership of an asset in lieu of their share, are you able to deal with this request properly and account to the other beneficiaries?
While some estates can be ‘easy’ most are not and in an increasingly litigious society it is important to protect yourself. There is no defence to a lay executor for not understanding their role or responsibilities fully. If you have been appointed as an executor it is important you seek legal advice from a professional, it could be much more costly in the long run if you don’t.
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