06 June 2019
DIY probate: the hidden costs
When someone dies, you may be in charge of sorting out their estate in a process known as 'probate', which can be arduous and time-consuming, taking months to complete.
In 2017, the government launched an online service aiming to make the process easier. Its current key features include filling in an online statement of truth, so there is no requirement to swear an oath in person, paying fees online and the facility to save and return to your application rather than having to complete in one sitting.
When online applications aren’t always suitable
Whilst online applications are useful, they are not suitable for every situation, particularly when it’s a more complex matter. Here are some examples:
• Where there is more than one executor applying for probate. If one executor applies for probate on their own and chooses to have Power Reserved to them without notifying the other executors, this could make the situation very contentious and give rise to a dispute.
• When the deceased died without making a will and intestacy rules apply. When this happens, the probate registry will always want to know in more detail about the deceased’s affairs which should be prepared by a lawyer in a statement of truth. A lawyer will also include what the order of entitlement is.
• Where there is a foreign element. Lawyers will know which laws apply to which jurisdiction. Or if you are based outside England and Wales, you will need an expert within the jurisdiction to deal with matters for you. Lawyers also have contacts in many jurisdictions to ensure the right tax is paid in the right place and where tax relief can be claimed.
• When there is a beneficiary dispute.
• Where there are multiple assets.
Room for error
Although applying online for probate simplifies some elements, there is still a lot of scope for personal applicants to make mistakes. Since the launch, many people have made errors on their application or haven’t claimed all the available inheritance tax exemptions and subsequently ended up paying the taxman huge amounts of money.
Other errors can be made when obtaining valuations of assets and not knowing what HMRC will accept, whereas lawyers have expertise in this area.
An executor will also need to provide information on any lifetime gifts made in the last seven years as it affects the nil rate band and potential inheritance tax that may be attributable to those gifts. There are annual exemptions and a lawyer would be able to claim all the reliefs available, whereas a lay executor may not be aware of these.
It’s also important to note that HMRC is not making tax rules any simpler. A lawyer can help you navigate the myriad of regulations to help you claim for tax relief.
Using a probate solicitor
How much this will cost is probably a key concern when thinking about instructing a wills, trusts and probate lawyer. However, as this is one of the more important legal processes that you will ever go through - for example, a grant of probate is needed to sell most assets including a property - expert advice should be taken.
Moreover, the forms to be submitted to HMRC are lengthy and are not always straightforward. This complexity can also escalate if additional information comes to light or there is a beneficiary dispute. These are situations where a solicitor’s advice would be invaluable.
B P Collins offers a complete probate service, from tax and property advice through to estate administration affairs or a combination of any of these. If an executor collates the necessary information, our experienced lawyers can then deal with the completion of the inheritance tax pertaining to the grant of probate. We aim to provide our clients with the highest level of service no matter the value of the estate.