26/09/2019
Louise Rance
You could be forgiven for thinking that once a will has been written there are no other formalities to administer a person’s estate after they’ve passed away. After all, a will expresses who the deceased wanted to benefit from their estate and how much, or what, each beneficiary inherits. It’s a legal document that’s drawn up by a solicitor with an appointed executor – the person (or persons; you can have more than one) who administers the estate of someone who has passed away) – so you might wonder what probate has to do with it?
Well, a will in itself doesn’t grant authority to distribute an estate. It merely tells the executor(s) who gets what. To actually administer the estate – allocate the assets of the deceased person – the executor needs to obtain a grant of probate. This is a legal document which confirms that the executor has the authority to deal with the deceased person's assets i.e. their money, property, jewellery, cars or any other possessions.
In an effort to save on costs, some executors attempt to carry out probate themselves. While there is a whole host of information about how to do this on the internet, the process isn’t for the faint hearted and there are definite risks involved which could end up costing far more than instructing a solicitor in the first place.
If this is something an executor insists on doing, here’s a list of the things they need to be sure of before proceeding:
What exactly is in the will?
A silly question you may think, but to ensure the wishes of the will are carried out, the executor needs to clearly understand who is getting what. While this may be obvious, the will may stipulate that a beneficiary receives their inheritance at a specific point in time rather than as soon as probate has been granted. Also, is there a trust in the will? If so, this will have its own set of legal instructions which will need attending to.
Is the will actually valid? You’d be surprised how many people forget to sign it. Not only that, would you be able to tell the difference between a valid and an invalid will?
Responsibility
Being an executor is a responsible job and not one to be taken lightly. It’s vital that the processes and protocols are followed so that the estate is administered correctly, otherwise the executor can become personally accountable for any mistakes. More worryingly, beneficiaries can hold executors liable for things they haven’t done if they cause a loss to the estate through poor administration.
Legal speak
The law is no stranger to mind boggling jargon and for those who are unfamiliar with legal terminology, it can be difficult waters to navigate. Misunderstanding the terms of a will could also lead to being sued by disappointed beneficiaries.
Taxes
As with death, the only other certainty in life is tax. Executors are responsible for paying any tax due to HMRC on behalf of the deceased. Inheritance tax is the obvious one that springs to mind, but there could be other taxes waiting to be paid before the remainder of the estate can be distributed.
The executor may even need to check the deceased person’s historic records of transactions to ensure that they don’t need reporting to HMRC. A final word of caution on this: failing to settle any outstanding debts could render the executor personally liable.
Paperwork
Put simply, there could be a lot. While some organisations will release money below certain limits without a grant of probate, most do need authority.
Getting hold of all the necessary paperwork from the banks, insurance policies, HMRC etc. can be a daunting task. In terms of properties to be transferred to beneficiaries, it’s the executor’s job to make sure the legal title is transferred correctly or, again, they can be sued for loss to a beneficiary.
Seek advice
Probate is complicated and ignorance of the process is no defence in the eyes of the law. It may appear cheaper to ‘DIY’ but if there’s even the slightest doubt about the capability of obtaining and carrying out the duties associated with a grant of probate, it’s always far wiser to seek legal advice.
At Russell & Russell, there is a team of specially trained probate solicitors who can provide advice and guidance through this complex area of the law. The firm offers a free consultation, so that you can understand what’s required and how to resolve any issues. Call 0800 103 2600 to book an appointment or fill in the contact form on the website and someone will call you back
Please note that this article is meant as general guidance and not intended as legal or professional advice. Updates to the law may have changed since this article was published.