When someone dies, their estate (property, money and possessions) usually needs to be administered through a legal process known as probate. In England and Wales, probate is the procedure by which the deceased’s will is proven in court and the executors are given authority to distribute the estate. If there is no will, a similar process applies through “letters of administration”.
Although many people instruct solicitors to deal with probate, individuals can apply directly through the courts. This is often referred to as “DIY probate”. While it may seem like a way to save costs, there are several risks that anyone considering this route should be aware of.
What is Probate?
Probate is the official confirmation that a will is valid and that the named executors can deal with the estate. Without a grant of probate (or letters of administration if there is no will), banks, building societies and other institutions will not usually release funds or transfer property.
The law governing probate primarily comes from the Non-Contentious Probate Rules 1987 and the Administration of Estates Act 1925. Applications are made to the HMCTS Probate Service (online in most cases, or by post where required). If the estate is worth over £5,000, the HMCTS application fee is £300; there’s no fee at £5,000 or less.
Why Some People Attempt DIY Probate
There are two main reasons people try to handle probate themselves:
- Cost – those attempting DIY probate seek to avoid paying professional fees.
- Simplicity – In straightforward estates, some executors believe they can manage the process without professional support.
However, even apparently simple estates can have hidden complications.
The Risks of DIY Probate
1. 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.
2. Misinterpreting the Will
Legal terminology in wills is not always straightforward. Executors may misunderstand the provisions, leading to incorrect distribution of assets or disputes among beneficiaries.
3. Failing to Identify All Assets and Debts
Executors must ensure that all assets are collected, and all debts are paid before distributing the estate. Overlooking debts or paying beneficiaries too early can make an executor personally liable.
4. 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 resolve.
5. 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.
6. Executor’s Personal Liability
Executors carry significant personal responsibilities. Errors in tax, distribution or administration can result in financial liability, even if the mistakes were unintentional.
When DIY Probate May Be Less Risky
DIY probate might be manageable where:
- The estate is small, and all cash balances are under each institution’s probate threshold (check with each bank/building society)
- There is no property.
- There are a few beneficiaries, all of whom agree on the process.
- There are no tax liabilities or foreign assets.
Even in these cases, care should be taken to follow official guidance.
Balancing Cost and Risk
While solicitors’ fees can 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 your behalf and ensure that the estate is administered in accordance with the law.
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.
If you are facing probate, it is always advisable to seek independent legal advice to ensure that the estate is dealt with correctly and to protect yourself from personal liability.
About the Author
James McMullan is a Partner and also heads up our Private Client team. James started his career as a family lawyer, but over the years, his practice has grown to encompass all aspects of private client law, including estate planning, Inheritance Tax, lasting powers of attorney, lifetime gifts, living wills, mental capacity issues, probate and contentious probate, trusts and, of course, wills.
James prides himself on spending sufficient time with clients at the outset of a matter to fully understand their position, needs, and objectives. He is committed to resolving disputes effectively, frequently using alternative dispute resolution (ADR). Given its costs and uncertainty, court litigation is a last resort.