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DIY Probate in England - Understanding the Risks
What is Probate?
When someone dies, their estate (property, money and possessions) usually needs to be administered through a legal process known as probate. In England and Wales, obtaining a Grant of Probate is the procedure by which the deceased’s will is proven in court and the executors' authority to distribute the estate is confirmed. If there is no will, a similar process applies where a Grant of Letters of Administration is applied for and an administrator is appointed.
A Grant of Probate/ Letters of Administration is the official confirmation that executors named in a will or appointed administrators can deal with the estate. Without a Grant banks, building societies and other institutions will not usually release funds and property cannot be transferred or sold.
The law governing probate primarily comes from the Non-Contentious Probate Rules 1987 and the Administration of Estates Act 1925. Applications are made to HMCTS Probate Service (online in most cases, or by post where required). If the estate is worth over £5,000, the HMCTS application fee is £300; there’s no fee at £5,000 or less.
Although many people instruct solicitors to assist them with the process, individuals can take on this responsibility themselves. This is often referred to as “DIY probate”. While it may seem like a way to save costs, there are several risks that anyone considering this route should be aware of.
Why Some People Attempt DIY Probate
There are two main reasons people try to handle probate themselves:
- Cost – those attempting DIY probate seek to avoid paying professional fees.
- Simplicity – In straightforward estates, some executors believe they can manage the process without professional support.
However, even apparently simple estates can have hidden complications.
The Risks of DIY Probate
1. Misunderstanding Inheritance Tax
Executors are personally liable for ensuring inheritance tax (IHT) is calculated and paid correctly. Mistakes can result in penalties and interest being charged by HMRC. Complex rules apply, including allowances, reliefs, and exemptions.
2. Misinterpreting the Will
Legal terminology in wills is not always straightforward. Executors may misunderstand the provisions, leading to incorrect distribution of assets or disputes among beneficiaries.
3. Failing to Identify All Assets and Debts
Executors must ensure that all assets are collected, and all debts are paid before distributing the estate. Overlooking debts or paying beneficiaries too early can make an executor personally liable.
4. Problems with Property
Where the estate includes property, there can be complications such as mortgages, jointly owned property, or an unclear title. These issues often require legal expertise to resolve.
5. Disputes Between Beneficiaries
DIY probate can increase the risk of disputes if beneficiaries feel the estate is being mishandled. Executors can be taken to court for breach of duty.
6. Executor’s Personal Liability
Executors carry significant personal responsibilities. Errors in tax, distribution or administration can result in financial liability, even if the mistakes were unintentional.
Balancing Cost and Risk
While solicitors’ fees can seem significant, they can save time, reduce stress and protect executors from costly mistakes. A solicitor can also deal with HMRC and the Probate Registry on your behalf and ensure that the estate is administered in accordance with the law.
Final Thoughts
Probate is a necessary legal process that should not be undertaken lightly. DIY probate is possible, but the risks can outweigh the savings if the estate is anything other than very simple. Executors should think carefully about whether they have the time, knowledge, and confidence to handle the process themselves.
If you are facing the challenge of dealing with probate, it is always advisable to seek independent legal advice to ensure that the estate is dealt with correctly and to protect yourself from personal liability.
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