Applying for probate Legal help?
When to use a solicitor
Complexities can arise in connection with the administration of an estate which you may not be able to handle on your own. Indeed many people simply don't have time to cope with the legal side of an administration.
It is at this point you should think about drafting in the services of a solicitor to help, especially considering the following:
- The solicitor carries insurance in case he or she makes a mistake. Another executor making a mistake might be personally liable
- A good knowledge of the law is essential when the deceased owned his or her own business, for instance, or was a partner in a firm, or was involved in an insurance syndicate, or where there is agricultural property, or when family trusts are involved
- The same applies where, on an intestacy or under the will, some of the property is to pass to children who are under the age of 18. Their rights are called minority interests and particular legal problems can arise regarding them
- Legal advice is usually required if, on an intestacy, some long-forgotten relative is entitled to a share in the estate. The problems involved in tracing relatives who have apparently disappeared require careful handling, as does the situation if they are not found
- Homemade wills sometimes contain ambiguities or irregularities, and legal help may be needed to avoid errors. An executor who wrongly interprets a will and fails to distribute to a lawfully entitled beneficiary may become financially liable
- A solicitor should be consulted if there is a possibility of anyone seeking a share, or a larger share, of the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975.
The DIY route
The DIY executor or administrator must decide whether to take on full responsibility for the administration, including personal liability for any mistakes, or involve a solicitor, who carries indemnity insurance.
You might find a solicitor who is willing to deal with your application for probate but will leave you to deal with the gathering in of assets and paying off liabilities once probate has been granted. In such cases, the solicitor should make it clear where his responsibilities end and yours begin.
In other cases, a successful DIY executor might engage a solicitor to deal with a post-death deed of variation or a challenge from a dependent. You must make an honest appraisal of your knowledge and ability before taking on a DIY administration.
- You could be personally liable if any debts come to light after the estate has been distributed unless you have placed a statutory notice in the London Gazette.
- If the will or the intestacy creates a trust, you will be responsible for its administration.
- If you decide to carry out the administration without legal help and there are any trusts included in the estate, you will have to get to grips with the law of trusts.
Inheritance and tax decisions
- If the deceased was a beneficiary of any trust or settlement, the capital value of that trust must be aggregated with the value of the estate to determine how much inheritance tax (IHT) will be paid.
- If the value of the estate exceeds the IHT threshold, claim all the available allowances and reliefs to reduce the tax burden. IHT on land or houses can be pain by ten equal instalments over ten years.
- There may be scope for saving IHT by making a post-death deed of variation of the testator’s will.
- If there are questions of IHT and deed of variation, it’s best to consult a solicitor.
If your answer to any of these questions is ‘I don’t know’, and you're not sure where to find the answers, it’s probably best to consult a solicitor.
- Is anyone likely to challenge the validity of the will?
- Do you anticipate any claim being made under the inheritance (Provision for Family and Dependents) Act 1975?
- In the case of an intestacy, can you construct a complete family tree? Are there any illegitimate or adopted children to be included?
- Has anyone died leaving children?