How to avoid problems with probate
24 October 2016
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.
Stephen Myers explains the common areas where complications arise, and how using a solicitor can avoid some of the potential pitfalls:
1.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 accordingly.
2. Dealing with fraud
If you suspect that your relative was pressurised into making or changing their will, this can be a difficult issue to deal with alone. A solicitor will alleviate the burden of raising such concerns and resolve fraud issues on your behalf.
3. 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.
4. Gathering information
As an executor you will need to collate information on all the assets and liabilities of the 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, share registrars and obtaining valuations of the investments as of the date of death. They can also obtain a valuation of any property and the contents.
5. Inheritance tax
Depending on the value of the estate, you may then 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 this is not done accurately you could find yourself open to accusations of fraud.
6. Challenges from family members
A solicitor will be able to provide advice and support if family members become difficult. They may try to challenge the will, or your conduct as an executor. This can be an emotional time for families, with old rivalries often coming to the surface. Using a solicitor can satisfy family members that everything is above board and being done properly.
7. 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 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. Your solicitor has experience on how to handle disputes sensitively.
9. Varying the will
Beneficiaries may want to refuse an inheritance, either to avoid inheritance tax or so that their children can inherit in their place. Your solicitor can advise on the options and advantages, and prepare a deed of variation.
10. Executors liability
An executor’s job can last from a few months to a number of years depending on the complexity of the estate. It is an onerous and unpaid task, and you can find yourself personally liable for mistakes.
By instructing an experienced solicitor, you can shorten the process of obtaining probate 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 specialises in probate law and can provide you with the assurance that everything will be handled correctly. The fees of a solicitor are a legitimate expense of the estate.
For more advice about obtaining probate contact Stephen Myers on 01782 577 000 or email email@example.com.
The contents of this article are for the purposes of general awareness only. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.