What is probate?

When someone dies, their estate usually needs to be administered through a legal process known as “probate”. This is the official confirmation that a will is valid and that the named executors are authorised to deal with the estate. Without a grant of probate, banks, building societies and other institutions will not usually release funds or transfer property. If there is no will, a similar process is followed using “letters of administration”.

What is DIY probate?

Although many people instruct solicitors to deal with probate, individuals can apply for probate directly through the courts. This is often referred to as “DIY probate”.

Why do some people attempt DIY probate?

People try to handle probate themselves for two main reasons:

  • Cost – those attempting DIY probate seek to avoid paying professional fees.

  • Simplicity – some people consider the deceased’s estate to be so straightforward that they can manage the process without professional support.

What are the risks of DIY probate?

Even apparently simple estates can have hidden complications.  Anyone considering DIY probate should bear in mind the risks, which include:

  • Misunderstanding inheritance tax

    Executors are personally liable for ensuring inheritance tax (IHT) is calculated and paid correctly. Mistakes can result in penalties and interest being charged by HMRC. Complex rules apply, including allowances, reliefs, and exemptions.

  • Misinterpreting the will

    The legal terminology used in wills is not always straightforward. Executors may misunderstand the provisions, leading to incorrect distribution of assets or disputes among beneficiaries.

  • Failing to identify all assets and debts

    Executors must ensure that all assets are collected and all debts are paid before distributing the estate. Failing to take all assets into account, overlooking debts or paying beneficiaries too early can make an executor personally liable.

  • Problems with property

    Where the estate includes property, there can be complications such as mortgages, jointly owned property, or an unclear title. These issues often require legal expertise to interpret or resolve.

  • Disputes between beneficiaries

    DIY probate can increase the risk of disputes if beneficiaries feel the estate is being mishandled. Executors can be taken to court for breach of duty.

  • Executors’ personal liability

    Executors carry significant personal responsibilities. Errors in tax, distribution or administration can result in personal liability, even if the mistakes were unintentional.

Final thoughts

Probate is a necessary legal process that should not be taken lightly. DIY probate is possible, but the risks can outweigh the savings if the estate is anything other than very simple. Executors should think carefully about whether they have the time, knowledge, and confidence to handle the process themselves.  They should also bear in mind that professional fees are usually charged to the estate as an aspect of the administration cost.

Executors sometimes end up contacting a solicitor when they run into difficulties, having tried to administer an estate without professional advice. In order to rectify the issues, the solicitor may need to unpick the work that has been done. This can result in higher professional fees than would have been incurred if a solicitor had been instructed in the first place.   

While solicitors’ fees may seem significant, they can save time, reduce stress and protect executors from costly mistakes. A solicitor can also deal with HMRC and the Probate Registry on behalf of the executors and ensure that the estate is administered in accordance with the law.

If you are appointed as an executor, it is advisable to seek independent legal advice to ensure that the estate is dealt with correctly and to protect yourself from personal liability.