Tackling Probate – When Should I Consult a Solicitor?

It isn’t uncommon for a family member to act as executor to a will and handle the process known as ‘probate’. However, the complex nature of dealing with probate, nor the full extent of legal responsibility, are always fully appreciated by those that take on the role…

Executors of an estate are legally responsible for ensuring that the estate administration is carried out correctly. Should mistakes be made, the executor can be held liable – both by the beneficiaries of the will and by relevant organisations, including HMRC.

Here, Jill Waddington looks at some of the circumstances in which you should use a solicitor to assist with probate.

Where inheritance tax applies

The rules around inheritance tax and the various reliefs that apply can be complex and difficult to follow by those unfamiliar with them. There are several processes that need to be followed in order to calculate of the value of an estate for inheritance tax purposes and a series of legal documents to be completed and submitted. Any mistake along the way could result in a miscalculation, which even if unintentional, could be investigated down the line by HMRC.

Where there are question marks over the validity of the will and/or its beneficiaries

Locating the most up to date version of a will isn’t always easy and in some cases, the contents of a will may be questioned by the beneficiaries, or dependants that expected to inherit. On occasion, evidence from witnesses to the will may need to be provided. In any event in which a will is being questioned, clarity is essential – and a solicitor is often best placed to be able to provide this.

Where the deceased died without a will

If the deceased died without a will, the rules of intestacy will apply to how the estate is divided. Depending on the family set up of the deceased (whether they were married / in a civil partnership, whether they had any children etc), this can be fairly straightforward, or very complex. Interpreting the rules of intestacy correctly are important for ensuring there are no ongoing disputes in relation to who benefits from the estate.

Other situations in which it is particularly beneficial to use a solicitor’s probate services are when the estate is insolvent, contains a business, overseas property, or a trust.

So, to answer the original question – when should I consult a solicitor – the answer is: in any event in which you are unsure.

It’s important to remember that executors of a will are often close family members of the deceased and as such, they are required to deal with a complex legal process at the same time as grieving their loved one. Even with the best intentions, this can be very difficult and can cause additional stress. It may therefore be sensible to consult a solicitor in any circumstances to take away the pressure of handling probate.

The benefits of using a solicitor to deal with probate include accuracy and speed. Furthermore, solicitors are able to identify potential problems at an early stage or areas where it may be prudent to consider subsequent tax planning and whether there should be any deed of variation.

At O’Donnell Solicitors, we provide our clients with a holistic approach and should any advice from our other departments be required – for example, in relation to the transfer of assets and properties, we can advise on this.

Jill Waddington is a solicitor specialising in private client law at O’Donnell Solicitors. For help or advice in relation to probate, please contact Jill Waddington on 01457 761320 to arrange a convenient appointment.