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The Perils of DIY Probate

Imagine being asked one day by a friend or loved one to act as Executor of their estate when they die.  

To the uninitiated, fulfilling the role of Executor might sound quite straightforward, but in truth it is no mean feat, not least because few understand the number of steps needed, the level of knowledge required, the amount of paperwork involved, and the sheer amount of time it can take.  

15 December 2018
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The role of the Executor in Probate

The role of the Executor is to disperse an estate after death (known as Probate) and is named within the Will of the deceased.  If there is no Will, then the person managing the estate is referred to as an Administrator.  Both Administrators and Executors are legally referred to as Personal Representatives.
Personal Representatives must follow a strict set of steps following the deceased of the individual including:

  • Registering the death
  • Reviewing the Will (including wishes for the funeral)
  • Cataloguing the estate (including money, possessions, property, and investments)
  • Notifying all relevant government agencies, banks, building societies and other financial firms of the death, asking them to close accounts.
  • Arranging for payment of Inheritance Tax 
  • Applying for the Grant of Representation (a document provided by the court enabling you to manage the estate of the deceased)
  • Liquidation of assets (e.g. selling property of the deceased)
  • Payment of outstanding debts
  • Distribution of the estate as set out under the Will or under the Rules of Intestacy

Probate pitfalls

As an Executor or Administrator, you will want to know you have done the best by the deceased and the beneficiaries of their Will.  Unfortunately, there are pitfalls which not only add to the time you will need to complete the process but may also inadvertently reduce the value of the estate to be dispersed.  

Time

There is no definitive time for Probate to be completed; this depends on the available time of the Executor, the speed of responses from the various entities involved, whether there are any disputes during the process, how long it might take to sell any property, and the overall complexity of the Will, estate, and general affairs of the deceased.

A straightforward Probate may take between six and nine months in total but could easily exceed 12 months with the smallest of complexities.  And to achieve this, you may need to commit several hours each week to the process.

The act of cataloguing the estate alone can be a highly demanding one.  You will need to ascertain the value of all bank accounts, property, possessions, investments, pensions, debts, and any cash gifted by the deceased in the past seven years.  If the deceased had little in the way of worldly goods, this process is much more straightforward, but what if they owned businesses, trusts, had overseas investments, and a myriad of outstanding debts?  

When it comes to advising relevant organisations of the death and closing of accounts, you have a duty to ensure no further funds are taken, and any funds owed in return are secured.  The sheer time taken to identify all the businesses that the deceased dealt with, and then to write to each individually providing sufficient information, and handling any responses, can be enormous.

Legal and financial complexity

Without professional advice, it is all too easy to make a mistake which will negatively impact the amount of the final estate value to be dispersed.  For example, inheritance tax is notoriously complex, and as such, even a minor misunderstanding, or unintended omission could cost dearly.

If you take inheritance tax for example, this is due six months after death.  If not paid in time, interest is incurred from the due date until the bill is settled.  There is also the possibility that there simply is not sufficient funds in the bank account of the deceased to pay the due inheritance tax.  In this case you may need to explore different options to make the necessary payment, including applying for an Executor’s loan.  In addition, it goes without saying Inheritance Tax is complex and subject to many rules; just by not applying a particular tax exemption could cost many thousands of pounds.

When it comes to paying back creditors, if this is not undertaken thoroughly and one is not repaid, then they can seek to pursue the beneficiaries for the amount owed, and they may also take legal action against the Executor.

In summary

Probate is a tough and demanding process for any Executor or Administrator.  You must strike a balance between carrying out the duties to the letter, but in a manner that preserves as much of the estate value for the beneficiaries as possible.  The smallest of errors can cost dearly.  The specialist guidance of a Probate Solicitor will not only remove the stress and burden from your shoulders but will preserve the inheritance as much as possible.

Please note, this article does not constitute legal advice.  

Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey.  We have a highly experienced private client team who can assist you with all matters relating to Probate.  To make an appointment, please call us on 01932 840 111.