Following the death of a loved one, you will not only be coming to terms with your grief, but also will face some complicated legal procedures, including probate administration. If you are named as an Executor in the Will, you may be tempted to do this yourself. There are unfortunately many ways in which you can be caught unawares, with more and more claims each year made against Executors for breach of fiduciary duty.
Here, we review some of the questions you should ask should you decide to proceed alone, and what you should consider before making that decision.
Is there a Will?If your loved one died without a Will then they have died Intestate. Probate becomes more complicated when there is no Will; even though there is a set procedure to follow which is similar to the process if there is a Will, the law dictates who can act as an Administrator of the estate. In the absence of a Will, the wishes of the deceased are not known, so you may face complications along the way.
Even with a Will, there will be complexities involved that may be unclear to you; the deceased may have included trusts in their Will for example. Trusts can be complicated to administer and will have an impact on any Inheritance Tax payable.
Are you aware of your responsibilities?Executors of a Will are personally liable for any mistakes made during administration of the estate. As an Executor, you will be legally responsible for ensuring the wishes of the deceased are met, the valuation of the estate is correct, that beneficiaries receive everything they should under the Will and that the necessary tax payments are calculated correctly and paid.
If you instruct a solicitor to carry out probate for you and there are errors made, they will have professional indemnity insurance; however you will be personally responsible.
Is Inheritance Tax (IHT) due?Whether IHT is payable will depend on many factors including the size of the estate, any gifts made by the deceased, the value of any trusts and the beneficiaries of the estate. Understanding the complexities of IHT is not an easy task and is an area we see most queries arise. As an Executor, you will need to work with HM Revenue and Customs on the accounts of the deceased, collating the necessary documentation yourself before completing the paperwork for HMRC. Even on what may appear a simple estate, this can be complicated and an incorrect submission can lead to severe penalties.
In addition to IHT, you may also need to consider Capital Gains Tax and any income tax that may be payable.
Will there be disputes?Even with a Will, there may be disputes between beneficiaries, or there may be a member of the family, business partner or a friend that feels they have been unjustly left out of the Will. This can arise particularly if there has been more than one marriage with children involved.
Do you have the time?Probate administration is complicated and so takes a long time, sometimes up to a year, to be fully complete. There are many steps involved in probate administration and it is important that these are kept on top of, that all paperwork is compiled correctly and payments are made on time. You will also need to liaise between many different third parties such as banks, HMRC, employers of the deceased etc.
This is assuming also that there are no complications, including but not limited to homes abroad, missing beneficiaries or disputes. Trying to do this as well as continue with your day to day life can be a big undertaking and a decision that should not be taken lightly.
As experienced lawyers who conduct this type of work on a daily basis for our clients, we know and understand the complexities of the law and will complete probate for you and your family efficiently, being able to spot any likely complications and manage them accordingly. As we are not emotionally involved with the estate we can, to some degree, also stay neutral if there are disputes.
If you're unsure whether to handle probate yourself, our team is here to help. Call us on 01329 222 075 or email us at privateclientenquiries@warnergoodman.co.uk for guidance.
