When to Use a Probate Solicitor and When to DIY Probate
28 March 2018
After someone dies, Probate is sometimes required to wind up their affairs. Probate is the legal process for obtaining a Grant of Representation, a document which grants the person named on it legal authority to deal with banks and other organisations as well as sell or transfer property on behalf of the deceased.
How Will I Know if Probate is Needed?
Probate is not required for every person’s Estate and sometimes it isn’t required for small Estates. If you’re unclear of whether or not Probate is required for an Estate, you can complete our short online Probate questionnaire to find out.
If Probate is required for the Estate, then you will need to decide whether to instruct a Probate Solicitor or whether to complete the Probate process yourself.
With our Probate Complete Service we take full responsibility for getting Grant of Probate and dealing with the Legal, Tax (not VAT), Property and Estate Administration affairs*.
*We can also pay all the costs of a Co-op Funeralcare funeral, providing the Estate owns sufficient assets which can be sold in due course to repay our costs.
Deciding Whether to ‘DIY’ or Instruct a Probate Solicitor
When Probate is required, someone will need to take full responsibility for this. The process of obtaining the Grant of Representation and using it to deal with bank accounts, property and other assets is known as “administering the Estate”.
If the deceased person left a Will then this should name an Executor, who will be the person responsible for administering the Estate. If there was no Will, then the Rules of Intestacy will determine who should take on this role. In these circumstances, this person will be known as the “Administrator.”
If you find yourself in the role of Executor or Administrator then you will need to decide if you want to administer the Estate yourself, or instruct a Probate Solicitor to help you.
Probate usually involves a significant amount of legal, administrative and tax work, which can be complicated and time consuming. If you decide to carry out this work yourself it’s important to note that you could be held financially and legally liable for any mistakes that you make, even if these are genuine errors. For more information, see What Happens if I Make a Mistake as an Executor?
If you feel confident in your ability to carry out all the required tasks, can commit sufficient time, and/or the Estate assets are not complicated then you may choose to complete the process yourself. However, if you’re not confident in carrying out the work that is required then you may decide to instruct a Probate Solicitor to take on the responsibility of the Probate work for you.
Steps Involved in the Probate Process
The quickest and easiest way to decide whether to instruct a Probate Solicitor or to carry out the Probate work yourself, is to look at the list below showing the different stages of the Probate process and some of the work involved.
Some of these stages require more complex work than others. It’s a good idea to be fully aware of what’s involved in Probate before committing to doing it yourself.
- Notifying utilities and other organisations of the death (such as HM Revenue & Customs and the Department of Work and Pensions)
All relevant organisations need to be notified of the person’s death. Many Government organisations can be informed using their Tell Us Once service.
- Locating all assets and calculating their value
Everything that the deceased person owned will need to be located and valued. This can become complicated if they owned property abroad or had secret assets that their family and friends were not aware of.
- Calculate and pay any Inheritance Tax, Income Tax, Capital Gains Tax due.
Working out whether or not Inheritance Tax will need to be paid on the Estate, and how much if so, will need to be done carefully. Calculating Inheritance Tax can be tricky as there are various allowances and thresholds that will apply. If Inheritance Tax is not calculated correctly, and too little Inheritance Tax is paid as a result then the Executor or Administrator can be held personally financially liable for the shortfall if the Estate has already been distributed to the Beneficiaries.
- Identifying and contacting the Beneficiaries
The Beneficiaries of the Estate may be people and/or organisations that are known to the Executor or Administrator. Alternatively, they could be individuals who are not known to the deceased’s friends and family. They may be abroad, with no one having contact details for them. In these circumstances, getting in touch with the Beneficiaries can prove extremely difficult. The administration of the Estate cannot proceed until all Beneficiaries have been contacted.
A Grant of Probate (if there is a Will) or Letters of Administration (if there is no Will) is the legal document which will give the Executor or Administrator the legal authority to deal with the deceased person’s money, assets and property. An application will need to be submitted to the Court in order for this document to be issued.
- Closing down bank accounts
Once the Grant of Probate or Letters of Administration have been obtained, the Executor or Administrator will need to get in contact with the deceased person’s banks to notify them of the death and close all bank accounts that were held in their sole name.
- Selling or transferring property
Any property owned in the sole name of the deceased will need to be either sold or transferred. It is the responsibility of the Executor or Administrator to arrange this.
- Selling or transferring all the deceased’s assets
All other assets that have a monetary value will need to be either sold or transferred and any sale proceeds paid into the Estate account.
- Paying off debts, mortgages and other liabilities
Once there are sufficient funds in the Estate, any outstanding debts need to be settled using this money. Note that the deceased’s assets should not be transferred to any Beneficiaries until these liabilities are paid.
- Preparing Estate accounts showing all assets and liabilities
It’s necessary to disclose all of the assets that the deceased owned, and the value of these, as well as any debts they owed. Most Beneficiaries will be entitled to see the full Estate accounts when their inheritance is distributed.
- Distributing the remaining Estate to the beneficiaries.
The Estate needs to be distributed in line with the deceased person’s wishes, if they left a Will, or as set out under the Rules of Intestacy if there was no Will. The Executor or Administrator is legally obliged to act in the best interests of the Beneficiaries during the administration of the Estate.
Instructing a Probate Solicitor
If you decide that the work involved in Probate is too much for you to take on alone, you can instruct our Probate team to carry out the administration of the Estate for you. There are no upfront costs to pay and our fee will be paid by the Estate, after it is in funds.