Wills, Probate and Tax specialist, Jenny Greenland, explains when executors should take legal advice.
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As an executor of a Will, whether you require a grant of probate depends very much on the circumstances.
Suppose, however, that you need probate. Can you apply direct, or must you instruct a solicitor?
In fact, instructing a solicitor is entirely a matter of personal choice. Many people deal perfectly well with 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.
Perhaps the most crucial consideration is 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. Although probate insurance is available, ultimately, you are personally liable for any financial losses to the estate resulting from a breach of your legal duty as an executor, however unintentional.
Do I need a solicitor for probate?
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 it’s 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. Trust law is complex, with traps for the unwary. There are similar considerations if any beneficiary lacks mental capacity.
- Trusts: Any other situation where the Will leaves money or property in trust.
- Foreign property: Advice is crucial if the estate includes land or property abroad.
- Business interests: The deceased person owned or had an interest in a business.
- Possible dispute: Is there anyone likely to dispute the Will?
Do you have the time?
I’m instructed occasionally by people who initially decided to apply for probate themselves but then realised:
- they do not have the necessary time; or
- who are unconfident with one or more aspects of the procedure.
In addition, sometimes executors are deterred from seeking professional help in the mistaken belief that they are personally responsible for legal fees. However, the estate pays the legal fees, not the executor.