How a Solicitor Can Help With Probate

19/10/2023

Probate is the legal process of administering the estate of someone who has passed away. 

This involves dealing with any money, property, and possessions they had at the time of their death. It also involves settling any outstanding debts, collecting any monies owed, and dividing the estate among the people to inherit it (the beneficiaries).

The administration of a deceased person’s estate is the responsibility of an executor (a person nominated in their Will) or an administrator (who is appointed following the rules of intestacy when there is no Will). Executors and administrators are collectively known as ‘personal representatives’ (PRs).

Probate can be complicated and requires significant time, paperwork, and expertise. However, as the process is often left to people with limited experience of what is involved and little knowledge of how it works, there is ample opportunity for things to go wrong.

Enlisting the help of a legal professional experienced in estate administration can be invaluable. In this blog, Russell & Russell’s specialist Probate solicitors consider some common mistakes made during probate and reveal how a solicitor can help.

1. Misinterpreting a Will.

The first step in the probate process is to ensure that a PR locates the deceased’s most recent valid Will. 

This is sometimes easier said than done, as many people update their Will throughout their lifetime, often without telling anyone or leaving specific instructions as to where the most up-to-date version is stored. 

PRs that carry out probate on an invalid, or incorrect, version of a Will risk making errors in distributing the estate and open the door to potential challenges. 

Similarly, any mistakes in interpreting the contents of a Will can prove costly. Wills often contain certain phrases and legal jargon that can be open to misinterpretation by those not familiar with the terminology. Ambiguity and uncertainty about a Will’s contents can be further exacerbated by the inclusion of codicils (amendments to the Will), unclear instructions and unforeseen circumstances, such as the death of a beneficiary.

If you are unsure about the contents of a Will, it is important to seek clarification from a solicitor at the earliest opportunity. Early professional legal intervention could save considerable time and money if something needs to be rectified later.‍

2. Distributing assets too early.

Executors can often come under pressure from beneficiaries to distribute the assets of an estate as soon as possible. 

However, giving out money and other possessions before all the assets have been collected, and you have undertaken the necessary legal or tax paperwork, can cause serious repercussions. 

Not only might you lose track of who has got what, but it can also be difficult to predict how that early loss of money could affect the distribution of the remaining funds. If unexpected costs or liabilities crop up later, and there is not enough money left in the estate to cover these expenses, a PR would be personally liable. 

Appointing a solicitor to help with the administration of an estate can limit personal liability. Personal representatives are entitled to appoint a legal professional to help them and have these costs paid for by the estate.

3. Omitting assets and liabilities.

It can be challenging to identify and collect the entirety of a deceased person’s estate. There is often no record of certain assets, and many people keep their debts quiet, making it hard for a PR to locate them.

However, PRs must make every attempt to track down the deceased assets and liabilities. Not only is this crucial for submitting accurate figures to HM Revenue & Customs (HMRC) so that the inheritance tax return can be completed correctly, but it also protects executors against claims from creditors and beneficiaries later on.

A solicitor who has experience in probate claims will ensure that a full financial asset search is completed. 

4. Inadequate record keeping.

Executors are legally required as part of their duties to produce evidence of all financial transactions made to and from the estate. This includes producing written confirmation that beneficiaries received their share of the estate, receipts showing debts paid, and any records of expenses from dealing with the estate. 

Failing to keep a comprehensive record of all financial transactions, no matter how small, is a common oversight but can result in significant problems.

5. Failure to locate the beneficiaries.

Some Wills leave gifts to groups of beneficiaries that are not named individually, for example ‘my grandchildren’. As executor of a Will, it is your responsibility to take all reasonable steps to track down such beneficiaries, otherwise you may be personally liable for their loss.

A solicitor specialising in Wills and Probate work can help you determine what counts as ‘all reasonable steps’ and assist you in your search.

6. Valuation mistakes.

Inaccurate valuations of the various assets that make up an estate is a common pitfall in estate administration. However, outdated or estimated valuations can lead to beneficiaries missing out and can also affect the amount of inheritance tax paid.

Inheritance tax is a complex area of law, and specialist professional advice is vital. Any mistake that has tax implications could result in serious trouble with HMRC.

If you are the executor or administrator of an estate, it is vital that you understand your role and responsibilities before you start estate administration. The probate process can be overwhelming, and without professional guidance can be hard to navigate.

Whether you require some initial guidance or would like a solicitor to deal with the entire process on your behalf, Russell & Russell will help you ensure that you do not fall foul of some of the most common probate mistakes.

Probate Solicitors

Russell & Russell’s experienced probate solicitors can assist with all matters relating to probate, from obtaining a grant of representation on your behalf, to dealing with the administration of an estate.

We will work closely with you, providing professional legal guidance on all aspects of estate administration and answering any questions you may have.

We offer a free initial consultation, where we can get a better idea of your circumstances, so we can advise on the best way to proceed.

Russell & Russell are accredited by the Law Society’s Wills and Inheritance Quality Scheme, which sets the benchmark for best practice and transparency in the provision of wills and estate planning services.

if you would like to get in contact with our probate team, please call 0800 103 2600 or request a call 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.