PROBATE

TOP 5 Reasons to use a solicitor for Probate

Yes, you can have a friend or family member deal with probate. But why?

I’ve been in practice now for longer than I care to remember. I’ve drafted thousands of wills, and administered hundreds of estates. And in my experience, the vast majority of people will choose to appoint family members or friends to be their executor(s). Is this right call? Do your loved ones really want that burden whilst also dealing with the grief of loss? If you take someone out for dinner (the good bit), you don’t then expect them to pop out to the kitchen and cook, serve, and wash up!

Here we look at some of the issues you might want to think about when appointing your executors, and we highlight the top 5 reasons to appoint a solicitor to deal with the administration of your estate – rather than burdening family members or friends.

What does an Executor do in Probate?

The complexity of an estate will vary from one to the next. But, for all estates, the basic structure an executor will follow will include:-

Establish the estate – ie get valuations for all assets and liabilities
Inheritance Tax (IHT) – pay what’s due
Probate – apply to the court for a grant of probate
Realise assets – cash in all assets
House – clear and sell your home
Legacies – pay any fixed cash legacies
Income Tax – finalise your income tax with HMRC
Estate accounts – produce estate accounts detailing all payments in and out of the estate
Residuary Estate – pay the balance of the estate to your residuary beneficiaries

How long does Probate normally take?

Even the simplest of estates will typically take 12 months or more. This is because your executors are in the hands of others for much of this period – eg finalising your income tax with HMRC, or selling your house.

If I appoint family members can they appoint a Solicitor to do the work for them?

Yes, and this is the compromise. If you appoint family members or friends as your executors, but they decide they don’t want the burden that comes with it, they can do one of three things:-

Renounce Probate – meaning they formally don’t and won’t act
Power Reserved – this is where their name does not appear on the grant of probate but they have not renounced. If needed, they can be appointed later to join the ‘extracting executors’ (ie those whose name appears on the grant of probate).
Appoint a Solicitor – this means the solicitor is not the appointed executor, but they can carry out the day to day work on behalf of the ‘lay executors’

So, all that being said, here comes 5 top reasons to appoint a solicitor as your executor!

1. Remove the burden from loved-ones!

Dealing with the administration of an estate takes a lot of work, over a long period of time. By definition, if you have appointed family members or friends, it therefore (for them) is following the loss of a loved-one. It doesn’t take too much thought to question why one would want to then also burden them with the considerable time, responsibility, and potential stress of also dealing with the conclusion of all of your financial affairs.

Think for a minute about just one bit – selling your house. We all know that the conveyancing process is less than ideal. This is potentially just one part of your estate!

As I said above, you wouldn’t take someone out for dinner, but then insist on the cooking, serving, and washing up! The ‘good’ bit for your family and friends is being beneficiaries – not executors.

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2. It’s what we do day in, day out!

Stress is often described as being driven by two things – lack of time and lack of skills/knowledge. There is every likelihood that in appointing a family member or friend that you will be asking them to do something they have not done before, and they may well already have busy lives of their own to be dealing with.

If you choose the right solicitor, you are not only removing the burden from your loved-ones, but you are also putting them in the hands of experts. An expert probate solicitor will take all of the worry out of things for your beneficiaries, and make sure that everything is done as quickly as possible.

If you are going to use a solicitor as your executor – like anything, choose carefully. Do they have independent client reviews? Do you know someone who has perhaps used them before?

Lastly for point 2, we have the right tools (and knowledge). So even something as simple as gathering all of the initial information for probate, we have case management systems meaning we can produce all of the requisite documentation quickly and easily to notify everyone, and gather together the information that will be needed for probate and tax purposes. Would your lay executors know how to value assets for probate? What the latest application process is for probate? How or when to pay legacies? Their obligations as regards HMRC and income tax? The list goes on…!

Because it is what we do, yes, we will charge the estate a fee for the work that we do. But, there is perhaps something surprising there that may reassure you. And so, here is reason 3……

By appointing a solicitor your estate has the comfort of expertise, and of course accountability.

3. Professional fees – no surprises!

I think it fair to say that some people worry that the cost of a solicitor acting as executor may be high. Couple that with a not entirely historical reputation for not being the most efficient (solicitors), and I get that appointing a solicitor may not appeal at first blush. But, consider this.

Firstly, the Solicitors Regulatory Authority or SRA (our Regulator) has (quite rightly) had a persistent push for many years to create transparency around the question of fees. Also, the world has changed – meaning that even solicitors are now caught up in a 24/7 world where social media and review sites will let the world know if things go wrong.

In fact, what happens in the administration of an estate where solicitors are the appointed executors is that the residuary beneficiaries become their pseudo client. And, all of the requirements that our regulator places upon as regards ‘client care’ (including fees) applies to the residuary beneficiaries. And so, your residuary beneficiaries would be provided with an exact breakdown of how costs are calculated (together with an estimate of total fees) at the outset. And throughout, as part of the obligation to keep them fully in the picture generally, your solicitor executors would also keep them up to date with a running total on costs. If there is any change to the estimated figure at the outset (whether that be higher or lower), your residuary beneficiaries will be informed of that.

Typically, fees will be paid from the estate funds once they are released after probate is granted. Your beneficiaries wont pay the solicitor fees – the estate does.

In the unlikely event that your residuary beneficiaries are unhappy with any aspect around costs, they have the benefit of us being tightly regulated, and they also have access to the Legal Ombudsman if service levels slip. And so, to point 4…..!

4. Solicitors are Regulated, Insured, and Accountable!

This sort of weaves itself into all of the first 3 reasons for choosing a solicitor to be your executor. So first off, its what we do. So, things should happen quickly, efficiently, and without any imposition on your family. And, things certainly shouldn’t go wrong. But what if things do go wrong?

We highlighted the point around costs that your solicitor executors would be accountable to your residuary beneficiaries around the question of fees (it is certainly not the case that solicitor executors can just charge what they want!). So, about service standards?

Well, if you have appointed ‘lay’ executors they are not regulated, or insured. And, they are likely not probate professionals either! Remember that if things go badly wrong, your executors are personally liable. If a family member messes up, do you want your residuary beneficiaries nagging them, or worse still having to sue them?!

Whilst lay executors are accountable to the Probate Courts, bringing that to any sort of practical conclusion is a long and expensive process. The fact that a solicitor executor brings with it a number of key ‘protections’ for you and your estate.

Because solicitors are regulated, we are obliged to have a very strict internal complaints process. Residuary beneficiaries have access to that process. Moreover, if they raise a complaint with the solicitor and are not happy with the outcome, they can then seek jurisdiction from the Legal Ombudsman. This is free of charge (to your beneficiaries). You should not of course need to reply on either of these, but no such comfort exists when you have appointed a lay executor.

Lastly, if things go really wrong, all solicitors’ practices are required to carry professional indemnity insurance which is there to cover off matters of professional negligence. Again, you should clearly not have to rely on this, but it is comforting to know the protection it affords your estate, and moreover your loved ones (beneficiaries).

5. Why on earth not use a Solicitor?!

So having stopped to think about the reality of what you burden your family with, here is a controversial reason 5, which is actually a question – why on earth would you do anything other than appoint a solicitor?!

We’ve identified the huge burden it places on family or friends both time and knowledge. We’ve identified that its unlikely to be what family members do a for a living and even if it is they’re going to have to do it as a favour. And, we’ve identified that an expert solicitor is not only going to do a better job, but even if their service was for some reason disappointing, they are fully accountable to all concerned with checks and balances in place to given you and your residuary beneficiaries all of the comfort you need.

If it isn’t too flippant, I guess we could all have a go at building our own house, but if it isn’t what we do, would we (build our own house that is)? I suspect not. I suspect we’d get the builders in……

Executor looking for a Probate Solicitor?

Remember, if you’re a lay executor and would rather have a solicitor do the day to day legal work in administering the estate – then we can do that despite not being the appointed executors. As the executor, you simply instruct us to do the leg work on your behalf. You make all necessary decisions, we just take on all the heavy lifting. Equally, if you would just like help with one aspect of the probate process, we can help with that too. We offer help to executors including:-