What Are The Most Common Problems With DIY Probate?

Executors and Administrators managing probate themselves without professional support (DIY probate) often run into serious problems, such as not understanding the wishes of the deceased or facing personal liability for mistakes made. In the most straightforward of cases or if the deceased had little in the way of assets, DIY probate may be feasible. However, with the considerable increase in the value of property in the past two decades, having a solicitor handle probate has become more important. In this article, we will look at some of the most common issues with DIY probate for Executors and Administrators.

What is probate?

As an Executor of a Will or an Administrator (also referred to as a Personal Representative) handling the affairs of a person who has died without a Will, you may need to apply for probate, giving you the legal right to handle their property, money, and other assets. When permission is given, you will receive a ‘Grant of Probate’. A Grant of Probate is needed in most cases, but not if the deceased only had savings (but no other assets), shared money, or shared assets. This is because shared assets automatically go to the surviving spouse.

You can apply for probate if you are named in a Will as an Executor or, if there is no Will, you are the closest living relative of the deceased.

Many personal representatives hand over probate and distributing the estate to beneficiaries to a probate Solicitor who has the experience to complete the process in a legally correct manner. However, some prefer to tackle the process themselves with little or no experience (i.e. DIY probate).

What are the risks of DIY probate?

It is extremely common for probate Solicitors to be left to deal with issues arising from DIY probate. Unfortunately, many who take on this important role have little understanding of the steps involved in and complexity of getting a Grant of Probate and the process that follows.

Some of the most common mistakes made by those attempting DIY probate include not:

• Following the correct process or missing out key steps required
• Getting the latest copy of the Will
• Fully understanding the Will and the wishes of the deceased
• Applying for a Grant of Probate or Representation (or not applying in a timely manner)
• Correctly cataloguing the estate (including any money, possessions, property, and other assets owned by the deceased)
• Informing all parties about the death of the individual (e.g. bank and insurance companies
• Getting an accurate valuation of assets
• Paying Inheritance Tax or ensuring it is paid on time
• Settling any outstanding debts of the deceased
• Correctly distributing the contents of the estate as directed under the Will or the Rules of Intestacy or
• Dealing with estate disputes effectively.

Unfortunately, Personal Representatives (PRs) often fall into several of the above traps, considerably increasing the potential for delays in administering and distributing the estate.

Avoiding unnecessary delays

PRs often underestimate the complexity, number of steps, and time involved in getting a Grant of Probate and then completing the distribution of the estate to beneficiaries. Beneficiaries want to know that they will receive their inheritance within a reasonable timescale, but delays can add to their frustration. The challenge for PRs is getting through the work needed expeditiously without making mistakes. Being under pressure and without a solid understanding of the probate process can lead to mistakes being made. For example, many PRs do not realise that Inheritance Tax must be paid six months after the death of the deceased. Not paying any tax owed on time can result in interest accruing, potentially leading to the need for an Executor’s loan. In addition, failure to find and pay all creditors may result in claims and legal action against you. 

DIY probate, more often than not, leads to further requests for information, resulting in protracted timescales. Even the most straightforward of Probate applications takes around 16 weeks to process, however, if more information is needed, this can easily increase to between 6 and 12 months. The reality is that turning around the probate and estate distribution process within a timely manner requires a commitment from PRs of several hours per week.  

What happens if mistakes are made during DIY probate?

Many PRs are unaware that mistakes (even small mistakes) made while acting in their role may constitute a breach of their legal duty, leading to personal and financial liability. Take, for example, the case of Glyne Harris, who acted as executor of an estate with a value of £1.2 million. Mr Harris duly completed the required HMRC Inheritance Tax form and ensured that the initial sum owing was paid. The problem related to the final payment due to the Inland Revenue to be paid at a later date. Mr Harris distributed most of the proceeds of the estate to a beneficiary who was supposed to pay the remaining tax when the amount became due. Unfortunately, the beneficiary did not make the payment and fled to the Caribbean, leaving Mr Harris with a personal liability of £340,000.

Mr Harris appealed the decision, however, the judge stated, “It is no defence to any Inheritance Tax determination that Mr Harris may have transferred the assets of the estate to a beneficiary on the basis that the beneficiary would be responsible for the payment of the Inheritance Tax due. Nor is it a defence that Mr Harris was ignorant of his obligations, as a personal representative, to pay the Inheritance Tax owing”.

Final words

Acting in the role of a PR should never be taken lightly. Yes, probate may look simple on the surface, but it is invariably more complex and time-consuming than people think. While DIY probate may make initial sense, it can quickly cause a headache or worse. Engaging the services of an experienced Probate Solicitor will give you the peace of mind of knowing that any beneficiaries will receive their full inheritance in a timely manner, and you will avoid personal and financial liability.

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