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DIY Probate – is it worth the risk?

26th January 2021

The number of do-it-yourself probate applications has rapidly increased in recent years and this trend looks set to continue with the more recent introduction of an online probate application portal for use by everyone, whether or not you have asked a lawyer to help you.  With people looking to minimise costs amid the ongoing Covid-19 pandemic, it is understandable why many decide to deal with a loved one’s estate without legal assistance.

Dealing with someone’s estate can be a daunting task involving exhaustive enquiries into debts, assets, lifetime gifts and trusts of the deceased – the size of the task should not be underestimated, and a lack of care and knowledge of the laws in relation to the administration and taxation of an estate can lead to significant problems for you and the beneficiaries of the estate.

What is the probate process?

Probate is the term often used to describe the process of dealing with a person’s estate after they have died. It’s a process that is undertaken either by the Executors appointed in the deceased’s Will, or by the deceased’s closest surviving family members, if there is no Will, who are appointed as Administrators of the estate by the Court. Executors and Administrators are known as the deceased’s ‘Personal Representatives’.

By obtaining a Grant of Representation, the Personal Representatives are given permission to gather the assets of the deceased and distribute them in line with the terms of the Will or with the Intestacy Rules, if no Will has been made.

There are some scenarios where probate is not required and a Grant of Representation is unnecessary, for example, if the deceased has left behind a minimal amount of funds and personal possessions.

However, where significant assets are left, a Grant is needed to administer the estate effectively and such situations include, but are not limited to:

  • Where significant funds have been left (usually over £15,000);
  • If the deceased owned stocks and shares;
  • If the deceased owned property or land;
  • If the deceased owned assets abroad.

Common pitfalls

Official statistics indicate that the number of claims against executors for breach of fiduciary duty (following the process incorrectly) has more than tripled in recent years, with many linking this increase to a rise in DIY probate.

Some of the most common mistakes of DIY probate include:

  • Undervaluing the estate for Inheritance Tax purposes.
  • Failing to identify and report lifetime gifts and trusts to HMRC.
  • Failing to pay Inheritance Tax within the strict deadlines.
  • Failing to deal with a Trust in the will.
  • Failing to identify or locate all assets of the deceased.
  • Failing to identify all debts of the deceased.
  • Distributing the estate to the wrong beneficiaries..

The process may at first seem straightforward, but it can often develop into something much more complex.  With limited knowledge of the laws relating to estate administration and Inheritance Tax, the process can quickly become onerous.

It is important to be aware that the Personal Representatives of an estate are personally liable if things go wrong and are under a legal duty to administer the estate with due care and skill, in a timely fashion, and to ensure that they fully comply with the law.  This liability extends to the debts of the deceased if they have not been properly identified and paid.  It is not just legal and tax issues that can arise when you try to deal with things without legal advice, because DIY probate can sometimes cause friction between family members, which takes an emotional toll on those involved. In some serious cases, the damage caused is so great that legal intervention is eventually needed to resolve the dispute and rectify the actions of the inexperienced Personal Representative.

Although handling it yourself may seem like a cost-effective alternative given the ongoing economic uncertainty of the pandemic, the value gained from the stress-free process of instructing an experienced legal team will be money well-spent in the long run.

Relieve the stress

Simply put, DIY probate can be a risky and stressful process.  If not handled correctly, it can cause more harm than good at an already difficult time.  Dealing with the affairs of the deceased can take time to be properly completed, sometimes up to a year, as there are many third-parties involved in the process.

Don’t fall into the trap of assuming that because you can save some money by doing it yourself that it’ll be plain sailing.  There is a lot of paperwork and even a simple oversight or mistake could create a host of issues later on – for most people this is not a simple side-project to fit in around the day job.

Probate is a process that must be taken seriously, at a time already stressful for family members.  It must be conducted thoroughly and handing responsibility for getting it right to an experienced legal team will save a lot of time and stress for the family.

It pays to seek professional advice from an experienced solicitor, like our own Sarah Nash, an Associate Director in the Wills, Probate and Trusts team here at Ansons.  You can call Sarah direct on 01543 267981 or email her at snash@ansonssolicitors.com

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