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Should I use a solicitor for probate?

View profile for Helen Cohen
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Dealing with the estate of someone who has passed away can be complex and time-consuming. There are many reasons why you might want to use a solicitor or other legal professional for probate and the estate administration process.

Personal Representative(s) of an estate

After someone dies, their affairs are finalised by their personal representative(s). This is the term given to the person or people who have legal authority to deal with the estate. If there is a valid Will, the personal representative will usually be known as the ‘executor’.  If there is no Will, or the appointment of any executor in the Will fails for some reason, then the personal representative will be known as the ‘administrator’. 

Instructing a professional to assist with the estate administration

Personal representatives can choose to deal with an estate themselves, and there is no legal requirement to have a solicitor or other legal professional involved. However, there are many responsibilities of a personal representative, and it is not always obvious what they are legally required to do. For example, the role of a personal representative is one for life. This means that even after the estate has finished being dealt with, something could arise years later which the personal representative may need to deal with. The personal representative can also continue to be liable for anything they have failed to do fully or correctly.

Personal representatives will often seek legal advice to ensure they are doing what they should, and to protect their personal position going forward. If a personal representative decides to instruct a legal professional to assist them with the administration, the cost of the lawyer’s fees are generally payable from the estate, meaning that the personal representative should not usually have to pay for the advice themselves.

Some further examples of why a personal representative might use a solicitor are:

1. Executors and administrators are personally liable for errors

The personal representatives of an estate are usually personally liable for any mistakes that are made if they cause loss to the estate. For example, if tax is not paid on time or not enough tax is paid (leading to interest and penalties being charged), then the executor or administrator will usually be required to pay any interest and penalties from their own funds.

2. The Will may be hard to interpret

The clauses contained in Wills can be hard for a non-lawyer to interpret. They are often lengthy documents and it is important to understand exactly what the Will provides and how the estate is to be dealt with. If the executor makes a mistake, they may be held personally liable by anyone who loses out as a result of their mistake.

3. Dealing with tax, including Inheritance Tax, can be complex

A personal representative needs to value the estate accurately and report to the authorities on its value. They will also need to calculate what tax is due, including Inheritance Tax, and arrange for this to be paid by the deadline. Failure to do this can incur penalties and interest.

4. The estate should be wound up as soon as is practically possible

An average estate may take around 18 to 20 months to deal with. While this may seem a long time, there is a lot to do in administering an estate and it can often take longer. Personal representatives need to do what they can to deal with the estate as efficiently as possible and avoid extensive delays. This can be exceptionally time-consuming, especially if there are many different assets to value and liquidate, and a property to clear and sell. Using a qualified, professional lawyer can speed up the administration process substantially as they have the time to dedicate to the estate administration and the expertise to advise the personal representative as to what needs to be done.

5. Instructing a professional lawyer can reduce the risk of conflict between family members

Emotions can often run high after a death. If a family member is dealing with the estate administration, there is a risk that other family members might criticise the progress being made or feel that they are not being kept in the loop. Using a solicitor or other legal professional brings an independent third party into the process so that if there are any concerns or queries raised by family members, they can be answered by an expert with significant experience of the process. This can help to put the minds of family members at rest, and can help to protect family relationships, making the solicitor the point of contact for queries and concerns, as opposed to the family member personal representative.

6. A professional can advise ways to protect the personal representative

Solicitors and other legal professionals are aware of the steps a personal representative can take to protect themselves. There are also steps a personal representative should take to ensure they are dealing with the estate properly and distributing to the correct beneficiaries. If there is a risk that not all beneficiaries have been identified or there are people who are owed money from the estate who are unknown, then the personal representative should take steps to find those unknown individuals. Failure to do so could result in them being personal liable, meaning they might have to pay a legacy or an estate debt from their own funds in the future. A professional lawyer can advise ways to protect the personal representative from future liability and searches that can identify missing beneficiaries or creditors.

7. Preparing detailed estate accounts is not always straightforward

Once the estate has been wound up, detailed estate accounts should be prepared. Any beneficiaries entitled to a share of the residuary estate (known as residuary beneficiaries), can see the estate accounts. The accounts should include all of the estate’s assets and liabilities, any income and gains, and full details of the estate’s expenses. It is not always simple to prepare estate accounts, particularly in a more complex estate or where the administration period has been lengthy. Solicitors are used to dealing with estate accounts and will usually prepare these as standard if they are instructed to deal with the estate administration.

8. A qualified lawyer can offer related services

Probate lawyers often provide related services such as advice on and preparation of Wills, advice on Inheritance Tax impact and planning and dealing with the sale or transfer of estate property. Having all the services you need in one place often makes matters simpler and can ensure that personal representatives have the assistance they need.


Contact us

If you are dealing with the estate of someone who has passed away, and would like to speak to one of our expert probate lawyers on how we can assist you, please contact us on 01252 733 770 or by email at . We will be happy to discuss our services and arrange an appointment for you to speak to one of our probate lawyers at our Farnham office.