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Should I Complete Probate Myself or use a Probate Solicitor?

Should I Complete Probate Myself or use a Probate Solicitor?

Expert view

Losing a loved one or family member is really difficult. In addition to the emotional side of someone dying, you also have to deal with the practicalities of a death.

These include finding the will, if there is one, and arranging probate. This can be a complicated and time consuming process. You do have a couple of options about how to deal with it.

If there was a will, executors would be named in the will. If you’ve been named as an executor, your job is to administer the estate. You can obtain probate and distribute the estate yourself, along with any other executors. But as an executor, you are legally responsible for making sure that the estate has been administered correctly. This can be difficult, particularly if you are dealing with a complicated estate.

If you do decide to administer the estate yourself, careful organisation is essential. Failure to follow the correct procedures and meet all claims and liabilities can have serious consequences. This could even leave you liable to being sued.

So when should you use a solicitor to administer the estate?

Complex Wills and Trusts

Wills do contain legal jargon that is difficult to understand. If you are the executor, you have a legal responsibility to administer the estate properly. To do this, you must interpret the will correctly. With a complicated will and with trusts involved, there is a good chance that you may not understand the instructions given. This could result in you distributing the assets incorrectly and you could be liable for any mistakes.

Beneficiaries Who Are Children

If the person who died leaves money to someone under the age of 18, they can’t inherit this money until they are an adult (18 years old by law) or until they reach an age stipulated in the will. In this situation, a trust is created. This happens automatically and the will is known as the trust document.

Once the trust is created, trustees will need to be appointed and they are usually the same people as the executors named in the will. The trustees will manage the trust according to the terms of the trust and distribute any money or income from the trust to the beneficiaries as directed.

There may be inheritance tax to pay when you manage and wind up a trust. We recommend that trustees seek legal advice to make sure they carry out their duties properly and that they manage the trust in line with the terms of the trust.

Overseas assets

With the merger of international companies and the popularity of holiday homes, it’s becoming more common for people to own assets outside of the UK.

You may be advised to prepare a second will which would deal with your assets outside of the UK. If you don’t make a separate will, the assets will be distributed in line with the law in that country.

Whether you’ve made a will for your overseas assets or not, your family may find that they have to obtain probate in the country where the assets are situated. The Grant of Probate issued from the Probate Registry of England and Wales will only deal with assets in England and Wales. Owning assets outside the UK complicates the estate administration process and you may have to seek legal advice to get a foreign grant.

Large estates

When you are administrating a large estate, you’ll probably have to deal with multiple tax liabilities such as inheritance tax, capital gains tax and income tax. You must settle all of these correctly before finalising an estate.

The residence nil rate amount (RNRA) was introduced in April 2017. It’s applicable to property owned by the person who died. Claiming this additional allowance can significantly reduce the value of an estate which reduces the inheritance tax liability. But there are requirements that have to be met to successfully claim this additional allowance. These range from how the property is owned to who the property has been left to so it’s important to get proper advice about how to do this correctly.

In addition, any unused nil rate band amount from the spouse of person who died can be transferred to the estate to minimise the inheritance liability of the estate. Again, this can be complicated so it’s worth taking advice from a probate specialist.

Disgruntled beneficiaries

Under the Inheritance Act, people can bring a claim against an estate if they’ve have been left out of a will but believe they should’ve received something from the will. People can also use the Inheritance Act if they were named in the will but don’t think they’ve received what they are entitled to.

You shouldn’t distribute any assets from the estate until at least six months has passed from the date of issue of the Grant of Probate. Any claim under the Inheritance Act has to be made within six months of the issue of the Grant of Probate and if you distribute assets from the estate before the time is up and a claim is made against the estate, you could be personally liable for settling the claim.

You must act on behalf of the estate in defending any claims made against the estate. Your main focus is to make sure that you follow the wishes of the person who died as laid out in the will and any statement of wishes.

This is a complicated area of law and where claims cannot be agreed, they may have to be settled in court. Getting expert legal advice as early as possible is recommended.

You can see that estate administration is a complicated process, which does take up lots of time and energy. Make sure you know when to get expert help and advice from a probate lawyer.

If you need help, call us now on 0117 926 4121 or make a Free Online Enquiry.