Avoiding problems with probate

If you have been appointed as an executor in a will you may be tempted to try to obtain probate yourself with a view to saving on legal costs. You may be aware that probate applications can now be submitted online with the recent introduction of a ‘Statement of Truth’ which replaces an ‘Oath’ in an attempt to simplify the process if you are apply for Probate yourself.

However, except with the simplest of estates, the process can be complex for inexperienced executors to handle and there are many potential pitfalls and problems which can arise. In the event of a dispute regarding the will it can end up costing much more than it might have done had you used a solicitor and cause significant delay to the process.

Pardeep Bancil, wills and probate lawyer at Dexter Montague LLP Solicitors in Reading explains the common areas where complications arise and how using a solicitor can avoid some of the potential pitfalls.

Validity of the will

A solicitor can check that the will has been drafted and executed properly and confirm that it is still valid.  Recently, for example, a will was overturned where a couple had mistakenly signed each other’s will and consequently invalidated them.  If a problem does arise, your solicitor will be able to advise you what to do.

Dealing with duress or fraud

If you suspect that your relative was put under pressure to make or change their will, this can be a difficult issue to deal with alone.  A solicitor will alleviate the burden of dealing with such concerns and resolve issues of suspected duress or fraud on your behalf.

Following wishes

The executor’s job is to ensure that the terms of the will are carried out.  Your solicitor can explain each section of the will and its implications for tax and inheritance.  Estates can often be complicated, and they must be administered according to strict rules, particularly if they include trusts which have been set up for particular tax planning purposes.

Gathering information

As an executor you will need to collate information on all the assets and liabilities of the deceased person’s estate, which can be very time-consuming.  Your solicitor can take over many of these duties on your behalf, including writing to the various banks, building societies, credit card companies and share registrars, and obtaining valuations of the investments as at the date of death.  They can also obtain a valuation of any property and the contents.

Inheritance tax

Depending on the value of the estate, you may need to submit an account to HM Revenue & Customs and arrange payment of any inheritance tax.  You will also need to provide beneficiaries with detailed accounts of the estate. If these tasks are not done accurately you could potentially find yourself liable for unpaid tax or debts.  

Challenges from family members

A solicitor will be able to advice and support you if difficulties with the deceased’s family members arise.  They may try to challenge the will or your conduct as an executor. This can be an emotional time for families, with old rivalries or disputes often coming to the surface.  Using a solicitor can satisfy family members that everything is above board and being done properly, as well as acting as intermediaries to reduce the stress upon you.

Claims from dependents

Where a dependent has a financial claim because they have not benefited from the will in the way they anticipated, you will need advice on what to do as the estate could end up in court.

Disputes

Disputes can arise where family members feel excluded from the will, or perhaps a substantial portion or all of the estate has been left to charity.  Solicitors handle disputes sensitively on your behalf to resolve issues in the best way possible for all parties.

Varying the will

Beneficiaries may want to refuse an inheritance, either to avoid inheritance tax or so their children can inherit in their place.  Your solicitor can advise on the options and advantages and prepare a deed of variation.

Executor’s liability

An executor’s job can last from a few months to a number of years depending on the complexity of the estate and the implications of a will or legalities, meaning that can become an onerous task and as many executor appointments are unpaid, many executors want the assistance of a solicitor, in which case the estate bears the burden of legal costs as they are a legitimate estate expense.  

By instructing an experienced solicitor, you can shorten the process of obtaining probate, reduce stress for yourself and avoid causing unrest among the family.  With often large amounts of money at stake, it is safer to leave it in the hands of an experienced solicitor who are specialists in probate law and can provide you with the assurance that everything will be handled correctly.  

For more advice about obtaining probate, please contact:

Pardeep Bancil, solicitor

pardeep.bancil@dextermontague.co.uk

main office: 0118 939 3999

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.