Wills, Probate and Tax specialist, Sarah Loveless, explains when executors should take legal advice. Our Probate Team are available to help you on 01225 755656. Alternatively, you can email them, or complete the Contact Form at the foot of this page.
When you lose someone, if you are an executor of their Will, whether you require a grant of probate depends very much on the circumstances, which I explored in an earlier article. Suppose, however, that you do need probate. Do you have to instruct a solicitor, or can you apply yourself?
In fact, there’s no requirement to instruct a solicitor, and many people deal perfectly well applying for probate without ever taking legal advice. But before deciding whether or not to instruct a solicitor, there are several factors you should always consider.
An executor’s liability
Perhaps the most important consideration for you is your personal liability. Taking on the role of executor carries a huge responsibility. You have the legal authority to administer the estate, but you are also responsible for any mistakes made. Although you can take out probate insurance, ultimately, you are personally liable for any financial losses that arise as a result of a breach of your legal duty as an executor, however unintentional.
When does an executor need to take legal advice?
If any of the following are relevant to the estate, in my opinion, you should always take legal advice:
- Lack of clarity: Sometimes, the terms of a Will are not entirely clear, particularly if the Will was homemade. For example, the Will may contain ambiguities or not deal with everything in the estate.
- Minor beneficiaries: if any part of the estate is to pass someone under 18, a trust arises. There are similar considerations if any beneficiary lacks mental capacity.
- Trusts: any other situation where money or property is left in trust.
- Foreign property: the estate includes land or property abroad.
- Business interests: the person who has died, owned or had an interest in a business.
- Possible dispute: is there anyone likely to dispute the Will?
Do you have the time?
As a probate specialist, I’m instructed occasionally by people who have initially decided to apply for probate themselves but then realised they do not have the necessary time or who are not confident about one or more aspects of the procedure. In addition, sometimes executors are deterred from seeking professional help by the mistaken belief that they are personally responsible for legal fees. However, the legal fees are paid by the estate, not by the executor.