This page provides information for people wondering whether to apply for the Grant of Probate/Letters of Administration and carry out the administration of an estate themselves. The process is similar whether or not the person who died had left a Will but here we explain the differences which may have an impact on your decision to carry out probate yourself or whether you should engage a legal professional.
DIY PROBATE/ADMINISTRATION (ENGLAND & WALES)
We should explain at the outset that the National Bereavement Service works in partnership with a number of solicitors who are trusted to give a high quality service to anyone wishing to use their services, as well as to provide an honest and transparent fee structure. We do not expect any solicitor to encourage anyone to take out a service that is not needed and it should be noted we can only introduce you to a solicitor with your consent. Whether or not you choose to use their service is a decision you make after consultation with them and confirmation of their fee structure.
We want you to make the right decision for you in relation to the estate you are responsible for and hope this information will be helpful to you. Do phone us if you would like to discuss your options further.
There are two types of professional services available:
The factors that may influence your decision on whether to deal with probate yourself can be grouped under four headings:
If you are named as an executor in the Will you are entitled to administer the estate. If you are the only executor the decision whether or not to do the administration or to appoint a legal professional to do this is entirely yours. If there are other named executors who are living and who have mental capacity you must reach an agreement with them about how to proceed.
Being named as an executor does not force you to administer the estate and there is a legal mechanism for you to avoid this. You can either renounce your responsibility which means you step back permanently or you can step back from most of the work to allow another executor to do this by applying for ‘powers reserved’ with the Probate Registry.
You need to be completely certain the Will is valid in the way it has been written, signed, dated and witnessed. You should be reasonably certain the person who wrote the Will had full mental capacity at the time. You can be confident of all this if the Will has been drawn up by a professional. You need to be more cautious with a ‘home made’ Will, especially if you have reason to think that someone may challenge the Will and its provisions e.g. someone who was financially dependent on the person who died is not named as a beneficiary.
You will want to consider if you know the other executors, have a good relationship with them and completely trust them.
If a solicitor has been appointed as an executor (quite common if they drew up the Will) they may renounce their appointment if you ask them to if you want to administer the estate yourself, but they are not obliged to do so.
Make sure you completely understand the meaning of the Will. A professionally written Will may use terms that have a very specific legal meaning that may not be the same as how the words are used in everyday language. An example might be whether money in a certain account is to be given to a beneficiary as the balance occurs on the day of death or as it was on the date of the Will. The difference in wording is very small but might mean a significant difference in the value of the bequest.
A complex Will, in the way it divides the estate and with many beneficiaries will require a considerable amount of correspondence and work involved to ensure the legacies are dealt with.
A named executor in a Will has legal authority to deal with the estate immediately. If there is no Will (intestacy) an administrator needs to be appointed by applying for a Grant of Letters of Administration which is the legal authority to deal with the estate.
Sadly, it is quite common that after someone has died considerable debts are discovered. Unfortunately, debts do not always die with the person who owed money and there is a set hierarchy of the order in which debts are paid and in what proportions. We would never recommend personally administering an insolvent estate. A solicitor may be able to assist depending on the details of the estate and level and nature of the debt. Please do call us if you want to explore this option. In some cases, it is left to the creditors to resolve the estate.
Beware – if you start to administer the estate and you get things wrong, you may find yourself personally liable for the debts as well as not recovering any expenditure e.g. the funeral costs.
Very large and complex estates are best administered by professionals due to the high volume of work involved, especially with regard to calculating any tax liabilities. Some estates will incur Capital Gains Tax and Income Tax in addition to having to be assessed for Inheritance Tax liability.
If the estate includes a property which is to be sold, you almost certainly need to use a solicitor to deal with the conveyancing, so you may prefer to ask them to deal with the entire estate.
Estates which include businesses and farms/agricultural land are best dealt with by solicitors with expertise in these areas.
It is customary to write to beneficiaries early in the process of administering the estate to inform them of the death and that they will benefit in due course. Many beneficiaries do not realise that they are not entitled to more information until the very end of the administration process when they have to agree the estate accounts before any payments to beneficiaries should be made. Few people without experience of estate administration appreciate just how long the process may take and how little of that time is under the control of the person carrying out probate. Using a professional to do estate administration, even if you are an executor, means they will write all of the correspondence to beneficiaries. You can also refer impatient beneficiaries to the professional for further information.
It is helpful to use a solicitor if there are beneficiaries with whom you do not have a good relationship. All contact with them will be done by the solicitor, protecting you from difficult conversations / correspondence.
People who have been declared bankrupt are unable to benefit from a legacy by someone who has died. The money has to go to the official receiver or bankruptcy trustee. If you suspect that any of the beneficiaries may be the subject of a current bankruptcy order, it may be easier to use a solicitor.
You may feel that you do not want to take on the practical legal tasks after someone close to you has died, as you are already having to cope with your own emotional reactions and perhaps those of other family and friends who you may be supporting.
If you have not known the person who died all that well, or have not known about their financial circumstances, finding out about their financial and property affairs may feel very intrusive. Some decisions about aspects of the estate e.g. disposal of clothing or books which do not have significant financial value may have been left in the Will to the discretion of the executor/administrator. This can be difficult if you did not know the person well or the circle of people to whom it may be appropriate to gift these items or perhaps to pass them all to a charity.
You may be just too busy with work and family and other commitments to take on the work involved in administering an estate. You will also need a reasonable amount of stamina as the process can take several months or even a year or more to complete.
Many highly intelligent people are uncomfortable with completing forms of any kind. Unfortunately estate administration involves quite a variety of forms; for financial organisations, former and 4 current employers with pensions, the probate registry, the Inland Revenue and the Department for Work and Pensions (if the person who died was receiving state benefits of any kind).
You do not have to have lived near the person who died to administer their estate. However, it can be easier if you do if there is a property to be cleared or to be sold as part of the estate.
Personal liability – professionals dealing with probate have professional liability insurance which covers them in the unlikely event that they make an error in the estate administration. It is possible to purchase insurance for dealing with an estate but it is usually very expensive.
Executors/administrators who do probate themselves do incur personal liability for any financial consequences of errors they may make.
You can only claim expenses from an estate that you are administering such as postage or essential travel. You cannot be paid for the time taken, however long that may be.
Once you have thought about all these issues and you are confident that you able to carry out the estate administration, we suggest you type probate into the search box of www.gov.uk where you will find all the forms you need and links to various pages with helpful information. You are still most welcome to call us if you need explanations or guidance at any stage of the process.