Do It Yourself Probate - What Are the Risks?

dit probate, probate, estate planning

A Will is a legal document intended to distribute the estate of the testator after they have died however many people believe this is all that is required and aren’t aware of the probate process.

As a legal document, a Will expresses the wishes of the deceased individual and how their assets will be distributed while they commonly include the name of an executor or executors. The executors are the people responsible for dealing with the administration of the estate.

Although the Will gives the executors the legal authority to act, many asset holders will require their appointment to be confirmed by the Courts in the form of a Grant of Probate before assets will be released to them.

Executors may be tempted to go through this process themselves and make a personal application to the Court however this is not always the most cost effective or efficient way to make the application. There is quite a bit of information out there for executors but care must be taken that the source of information is reliable and helps the executor to identify the risks associated with dealing with an estate.

What Are the Risks?

The Will is likely to use legal terminology that you may not be familiar with. Does the Will create a trust? If so, there may be certain formalities required. Is the Will considered valid and if not, how would you know? In fact, if you misunderstand any aspect of the Will this could mean the estate is dealt with incorrectly leaving you open to be sued by beneficiaries.

Executors are also in charge of paying any tax to HMRC. Inheritance tax is the first tax that should be paid (prior to the Grant being obtained) but there could also be other taxes that need to be paid before the rest of the estate is distributed. The executor might need to consider historic transitions that were made and determine if these should be reported to HMRC. The deceased’s income tax history should also be explored as there may be a refund due to the estate if the deceased was still earning an income when they died. An executor can become personally liable for these debts, or for any unclaimed refunds, if the process is not managed correctly.

Get Advice

Probate can be extremely complex due to the amount of processes and legislation and a lack of knowledge is not enough to defend an executor should something go wrong. An executor who acts honestly and responsibly might be excused by the court, however it has been seen that courts have found executors to have behaved unreasonably for not seeking legal advice and so, they have still been held accountable where they have dealt with an estate themselves.