Top Ten Reasons to use a Solicitor for Probate

During the current pandemic, I am receiving lots of enquiries about dealing with Probate without the use of a solicitor. Ultimately, it is possible to administer a deceased person’s estate without legal assistance, but I don’t recommend it. Probate is a bit like a maze, and a Solicitor can be your navigator. Here are my top ten reasons why you should use a Solicitor:

1. To understand the legal burdens and responsibilities involved – The person with responsibility of administering the estate (known as the personal representative) has a number of burdens placed upon their shoulders. It’s good to know what those burdens are and to receive advice about them. A number of these burdens and responsibilities, if not dealt with properly, can lead to the personal representative being held personally liable. For example, if the relevant notices of the deceased’s death are not placed, and then the assets are distributed, a creditor could then make themselves known and seek payment of their debt personally from the personal representative. Taking advice from a solicitor ensures these burdens and responsibilities, and the steps to take, are known and carried out correctly.

2. To receive practical advice on what you need to do – Dealing with legal aspects of the death of a loved one is something you might never need to do, so how can you make sure you are doing it right? A probate solicitor will have dealt with many situations and complexities which only come with experience. To take just a couple of simple things; has the insurer of the deceased’s property been informed that it is now unoccupied? If now just one person is living in the property, has the local council been informed about the death so that the 25% single person’s allowance can be obtained? You can read my previous blog article on practical considerations here.

3. To correctly interpret the Will – Can you be sure about what the Will says, so you administer the deceased’s assets properly? The majority of Wills are written with some legal jargon or latin words, which are necessary to make sure that the deceased’s wishes are carried out. But, due to the strict legal interpretation of some words and phrases, there is a significant risk of making a mistake. And if you administer the assets incorrectly, you could be liable for any mistakes you make.

4. To clarify any doubts about the validity of the Will, or any issues in drafting or signing of the Will – Advice should be obtained for this and much will depend upon the circumstances of each individual matter. Often the Probate Registrar will require affidavits from witnesses to confirm the circumstances of the signing of the Will to confirm its validity. For example, if parts of a Will have been crossed out or changed, this could potentially affect the validity and legal advice should be sought.

5. To deal with tax – If the total value of the deceased’s estate is large, Inheritance Tax may be payable. There are various reliefs that may be applicable which will reduce the amount of Inheritance Tax payable. Likewise, the income tax position of the deceased (both during their lifetime and also in the period after their death) needs to be considered and dealt with to ensure that HM Revenue and Customs are not chasing for money at a later date. Capital Gains Tax may also be an issue where a capital asset is sold for more than it was worth at the date of death. There are often strict time limits of payment of tax, and failure to meet these time limits can lead to penalties and the payment of interest. Advice should be obtained on how to minimise the amount of tax payable, and to ensure it is paid without costly delay.

6. To reduce disputes and family disagreements – Dealing with a death is difficult and stressful enough without arguments or disagreements, or even formal legal action. For example, if you know that there is a disappointed beneficiary, get advice straight away. A personal representative must remain neutral where there are any claims or potential claims on an estate. Assets should not be distributed until any claims have been dealt with, as again there is the issue of personal liability. Using a Solicitor can also avoid potential arguments as we are bound by our code of conduct to maintain trust and act fairly. If you want to find out more the code of conduct is here.

7. To deal correctly with insolvent estates – Where the deceased died leaving more debt than assets, legal advice should be obtained. There is a strict statutory, “pecking-order” of payment of debts. Should you fail to follow the pecking order you can be held personally liable for any loss to creditors.

8. To save you time – To administer a deceased’s estate takes time, involves a great deal of paperwork and form filling, and dealing with financial institutions and government bodies. Sometimes people find they have to take time off from work or spend time in the evenings and weekends dealing with probate. Again a specialist solicitor who knows the processes and procedures can complete the work accurately and efficiently. Personally, I recognise that many of my clients find it difficult to get time during normal working hours, and so I offer appointments at the weekend or in the evening, when traditional solicitors’ firms are closed. My clients can contact me directly, rather than battle with a switchboard or legal secretary.

9. To let you grieve – Often the personal representative is the next of kin of the deceased or a close family member. Losing your loved one is so very difficult and often you don’t want to be worrying about dealing with the probate process and all it entails when you are grieving the loss of your loved one. I can help by taking some or all of the probate activities from you, leaving you with the time to mourn and deal with your loss.

10. And the final reason is, that you can actually save money – The best compliment I recently received from a probate client was being told that I’d already saved them money in the first couple of days of being instructed. This was in connection with dealing with a property, after the client had received some well meaning, but incorrect, information. Banks, estate agents and other organisations often provide guidance, but they are not specialists in probate, and may not fully understand the subtleties of the law or have the experience and qualification, or understanding of the legal implications. Indeed this is why probate is a regulated activity, which means that there are restrictions on which professionals can provide probate services.

Of course, this list isn’t exhaustive, there are a number of other reasons that mean you would be best to obtain professional advice. For more information contact me on 03300 242420 ext 17 or email me at samantha.downs@nexa.law