DIY probate pitfalls and how to avoid them

Solicitor Andrew Jack, Probate and Wills Specialist at AMD solicitors offers some tips.

The death of someone close to you is one of life’s most stressful events. Dealing with the grief and arranging the funeral are only the start. Unfortunately like most of modern life there is a large amount of paperwork that also needs to be dealt with.

If the person who died leaves a Will it will name “the executors”. If you are named as an executor you may need to apply for a Grant of Probate. The Grant of Probate is an official document which allows the executors to deal with the estate.

If there is no Will the process is more complicated. The law sets out who can act as an administrator. This may be a close relative and more than one person may have the right to act as an administrator. A Grant of Probate or Letters of Administration is always needed where the deceased has left more than £5,000 cash, any value of stocks or shares, a house or land and certain insurance policies.

It is important to be aware that the executors under a Will are personally liable. They are under a legal duty to administer the estate in a timely fashion and to ensure that the tax and financial affairs of the deceased are dealt with fully. This personal liability extends to the debts of the deceased if they have not been properly identified by the executors and paid. They must make sure that the wishes of the deceased are followed. If there is no Will you must follow the rules of intestacy as laid out by the Law.

The executors are responsible for Inheritance Tax due as a result of a persons death and they have to make sure it is paid. Whether or not tax is due can depend on the value of the estate at the date of death, the value of any gifts made prior to the date of death and to whom they were given to, the value of any trusts the deceased benefited from, and the persons to whom the estate is given.

Dealing with the affairs of the deceased can take a long time. It is not unusual to take up to a year, perhaps longer, if things are not straight forward. Many third parties are involved for example: HM Revenue and Customs, The Department of Work and Pension, former employers, banks, building societies and insurance companies. Other factors which can affect the time taken are whether the deceased’s financial affairs are in order, what was owned eg an interest in any farm or business and where it is located, eg holiday home in Spain, locating missing or misnamed beneficiaries and legal disputes by family members or dependants.

Beneficiaries are often anxious to receive gifts made to them under the Will but it is dangerous to make them before all of the assets and debts have been identified and dealt with.

In our world of complicated modern finances and property ownership there are many pitfalls that can catch the unwary DIY probate applicants and which might render them personally liable to claims not only by authorities but also by creditors and disgruntled beneficiaries.

Can you afford the time to do it properly?

Andrew is a member of the Probate, Wills and Trust Team at AMD Solicitors. AMD offer advice on all Will and probate matters. Contact Andrew or a member of the team at AMD Solicitors by e-mail or by telephone on 0117 962 1205. AMD have offices at Clifton, Henleaze and Shirehampton.

Copyright AMD Solicitors

This article is provided for general information purposes only and represents our understanding of the relevant law and practice as at the date of uploading. This article should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.

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