DIY Probate – potential pitfalls

Probate is the legal process of administering a deceased person’s estate. The process of probate will depend on whether the deceased left a valid Will or died intestate (without leaving a valid Will). Not all estates will need to apply for probate and this will depend on the type and value of assets in the estate. While some may be tempted to navigate probate themselves to avoid legal fees, DIY probate carries significant risks that can lead to costly mistakes and delays.

Issues of DIY probate

Some of the common issues people can encounter are:

• Legal complexity

If the deceased left a Will, this may include legal terminology that is not easy for a DIY personal representative to interpret. The Will may create a Trust, which must be actioned and could cause problems for the personal representative or beneficiaries in the future if not properly dealt with. Additionally, the personal representative will need to identify whether the Will has been correctly executed. If the Will is invalid, a previous Will may be valid instead or in the absence of an earlier Will, the estate would be distributed according to the rules of intestacy.

• Risk of personal liability

Personal representatives can be held personally liable for any mistakes made during the probate process. This includes failing to identify all debts of the deceased, failing to identify all assets of the deceased, loss to the value of an asset due to the fault of the personal representative (e.g. damage to a property where the personal representative failed to insure it), misinterpreting the Will, distributing the estate according to an old or invalid Will, distributing the estate to the wrong beneficiaries, or in the case of an intestacy, not locating all eligible beneficiaries. If a beneficiary suffers a loss due to a personal representative’s mistake, however genuine the mistake is, the executor may have to compensate the beneficiary from their own funds. Additionally, if a personal representative distributes funds to a bankrupt beneficiary, they may also find themselves out of pocket.

• Lack of familiarity with the probate process

While elements of estate administration can vary depending on the value of the estate and the type of beneficiaries etc, if you do not have experience of the general probate process it can be very overwhelming to determine the next steps. If you do not have experience of the probate process, you may miss important steps or make avoidable mistakes. If you appoint a professional to carry out estate administration, they are well experienced with the probate process and any associated hurdles. A professional will keep you up to date with each step of the probate process.

• Tax

The personal representative is responsible for ensuring that any tax is paid to HMRC. Most people are aware that Inheritance Tax should be considered but are unfamiliar with the various tax reliefs, exemptions and associated timescales. Capital gains and income tax may also be payable on an estate. The rules are complex and, if an incorrect amount is paid, the personal representative could find themselves having to fund any shortfall if they have distributed the estate by the time the error is discovered.

• Emotional Strain

Administering an estate is often emotionally draining, particularly when grieving a loss. For those unfamiliar with the process, it can become overwhelmingly time-consuming, detracting from other personal responsibilities. A professional can take matters out of the personal representatives hands and ensure the process runs efficiently.

While DIY probate might seem like a cost-saving measure, the potential risks and complications often outweigh the benefits. If you find yourself dealing with an estate, it is important to consider at the outset whether professional assistance would be beneficial.

Contact Us

Our experienced probate solicitors offer different service options to assist personal representatives with administering estates and can offer some fixed fee options in straight forward estates. If you have any queries or would like a no obligation quote, please contact us on 0191 232 9547 or complete this form.