DIY Probate (England & Wales)
Some people choose to apply for the Grant of Probate and Letters of Administration and carry out the administration of an estate themselves. This process is similar whether or not the person who died left a will, but there are some differences which may have an impact on your decision to carry out probate yourself or hire a legal professional.
The National Bereavement Service works in partnership with a number of solicitors who are trusted to give a high-quality service to anyone wishing to appoint them, as well as to provide an honest and transparent fee structure. We do not expect any solicitor to encourage anyone to take out a service that is not needed and we can only introduce you to a solicitor with your consent. Whether or not you choose to use their service is a decision you should make after consultation with them and confirmation of their fee structure.
We want you to make the right decision for your needs, in relation to the estate you are responsible for, and hope this information will be helpful to you.
You can phone us if you would like to discuss your options further – 0800 024 6121.
Option 1: Carry out the entire estate administration yourself
Option 2: Do most of the administration yourself but engage a legal professional for the key step of obtaining the Grant of Probate / Administration
Option 3: Engage a legal professional to carry out the entire estate administration
There are two types of professional service available:
These are independent practitioners who undertake various types of legal work or might be partners of, or employed, by larger legal practices which have specialist departments focused solely on probate work. This is the service we recommend for probate options 1 and 2.
- Probate companies
These are companies which employ legally qualified individuals, specifically to carry out estate administration. They are fully regulated but under a different system from solicitors. They do not undertake general legal work, but usually have partnership arrangements with other companies or through their own departments which deal with the necessary legal processes involved in administering an estate, such as conveyancing for the sale of a property.
The factors that may influence your decision on whether to deal with probate yourself can be grouped under four headings:
- The provisions of the will when there is one / Intestate Estate (no will)
- The nature of the estate
- The beneficiaries
- Your personal circumstances
- 1. The provisions of the will when there is one / Intestate Estate (no will)
If you are named as an Executor in the will you are entitled to administer the estate. If you are the only Executor, the decision whether to do the administration or to appoint a legal professional is entirely yours. If there are other named Executors who are living and who have mental capacity, you must reach an agreement with them about how to proceed.
Being named as an Executor does not force you to administer the estate and there is a legal mechanism for you to avoid this. You can either renounce your responsibility, which means you step back permanently, or you can step back from most of the work to allow another Executor to do this by applying for ‘powers reserved’ with the Probate Registry.
You need to be completely certain the will is valid in the way it has been written, signed, dated and witnessed. You should be reasonably certain the person who wrote the will had full mental capacity at the time. You can be confident of all this if the will has been drawn up by a professional. You need to be more cautious with a ‘homemade’ will, especially if you have reason to think that someone may challenge the will and its provisions, for example, someone who was financially dependent on the person who died is not named as a beneficiary.
You will want to consider if you know the other Executors, have a good relationship with them and completely trust them. If a solicitor has been appointed as an Executor, which is quite common if they drew up the will, they may renounce their appointment if you want to administer the estate yourself, but they are not obliged to do so.
Make sure you completely understand the meaning of the will. A professionally written will may use terms that have a very specific legal meaning, and which may not be the same as how the words are used in everyday language. An example might be whether money in a certain account is to be given to a beneficiary as the balance occurs on the day of death or as it was on the date of the will. The variation in wording is very small but might mean a significant difference in the value of the bequest.
A complex will, in the way it divides the estate and with many beneficiaries, will require a considerable amount of correspondence and work involved to ensure the legacies are dealt with.
A named Executor in a will has legal authority to deal with the estate immediately. If there is no will (intestacy) an Administrator needs to be appointed by applying for a Grant of Letters of Administration which is the legal authority to deal with the estate.
- 2. The nature of the estate
Sadly, it is quite common that after someone has died, considerable debts are discovered. Unfortunately, debts do not always die with the person who owed money and there is a set hierarchy of the order in which debts are paid and in what proportions.
We wouldn’t recommend personally administering an insolvent estate. A solicitor may be able to assist depending on the details of the estate and level and nature of the debt. In some cases, it is left to the creditors to resolve the estate.
Please do call us if you want to discuss this situation in more detail – 0800 0246 121.
Beware – if you start to administer the estate and you get things wrong, you may find yourself personally liable for the debts as well as not recovering any expenditure such as the funeral costs.
Very large and complex estates are best administered by professionals due to the high volume of work involved, especially regarding calculating any tax liabilities. Some estates will incur Capital Gains Tax and Income Tax, in addition to having to be assessed for Inheritance Tax liability.
If the estate includes a property which is to be sold, you almost certainly need to use a solicitor to deal with the conveyancing, so you may prefer to ask them to deal with the entire estate.
Estates which include businesses and farms, or agricultural land, are best dealt with by solicitors with expertise in these areas.
- 3. The beneficiaries
It is customary to write to beneficiaries early in the process of administering the estate to inform them of the death and that they will benefit in due course. Many beneficiaries do not realise that they are not entitled to more information until the very end of the administration process – when estate accounts must be agreed – before any payments are made.
Few people without experience of estate administration appreciate just how long the process may take and how little of that time is under the control of the person carrying out probate. Using a professional to deliver estate administration, even if you are an Executor, means they will write all of the correspondence to beneficiaries. You can also refer impatient beneficiaries to the professional for further information.
It is helpful to use a solicitor if there are beneficiaries with whom you do not have a good relationship. All contact with them will be done by the solicitor, protecting you from difficult conversations and correspondence.
People who have been declared bankrupt are unable to benefit from a legacy by someone who has died. The money must go to the official receiver or bankruptcy trustee. If you suspect that any of the beneficiaries are subject of a current bankruptcy order, it may be easier to use a solicitor.
- 4. Your personal circumstances
You may feel that you don’t want to take on the practical legal tasks after someone close to you has died, as you are already having to cope with your own emotional reactions and perhaps those of family and friends you may be supporting.
If you didn’t know the person who died all that well, or haven’t had prior knowledge of their financial circumstances, finding out about their personal affairs may feel very intrusive. Some decisions about aspects of the estate, such as disposal of clothing or books which do not have significant financial value, may have been left in the will to the discretion of the Executor or Administrator. You could pass these items on to people who knew the deceased more closely, or they would hugely benefit a variety of charities.
Alternatively, you may simply be too busy with work, family and other commitments to take on the administering of an estate. You will need a reasonable amount of stamina to do so, as the process can take several months or even a year or more to complete.
Many people are uncomfortable with completing forms of any kind. Unfortunately, estate administration involves quite a variety of forms for financial organisations, former and current employers with pensions, the probate registry, HMRC and DWP if the person who died was receiving state benefits of any kind.
You do not have to live near the person who died to administer their estate. However, it can be easier if you do if there is a property to be cleared or to be sold as part of the estate.
Professionals dealing with probate have Professional Liability Insurance which covers them in the unlikely event that they make an error in the estate administration. Executors or Administrators who do probate themselves do incur personal liability for any financial consequences of errors they may make. It is possible to purchase insurance for personally dealing with an estate, but it is usually very expensive.
You can only claim expenses from an estate that you are administering such as postage or essential travel. You cannot be paid for the time taken, however long that may be.
Once you have thought about all these issues and you are confident that you are able to carry out the estate administration, we suggest you type ‘probate’ into the search box of www.gov.uk, where you will find all the forms you need and links to various pages with helpful information.