Margaret had always been organised. When her father died last spring, she was certain she could administer his estate herself. After all, he’d left a straightforward will, the house was in his sole name, and he had about £180,000 in a building society account. “It’s easy,” she told her brother over the phone. “Why should I pay a solicitor two or three thousand pounds to shuffle some paperwork?”
Six months later, Margaret sat in a probate solicitor’s office, pale and shaking, after discovering that her father’s second wife (from whom he had been separated but never divorced) had a potential claim against the estate. The sale of the house had already completed. The money had been distributed to the beneficiaries under the will. And Margaret, as executor, was now personally liable for tens of thousands of pounds because she had failed to properly advertise for creditors, and to enquire as to her father’s full marital history. What had seemed like the very definition of a simple estate had turned into a legal horror story. The thousands of pounds Margaret had saved by not using a solicitor now looked trivial by comparison with the cost of putting things right.
This is the result of the lethal ‘simple estate’ myth. The idea that, if an estate is not very large and if there are no obvious complications, then a layperson can administer it without professional help. Margaret’s story, however, demonstrates why this is almost always a false economy.
Of course, no one would blame a bereaved family for going down this route, even if they were aware of the risks. The government’s own probate service has actively encouraged this way of working, with online applications and downloadable forms presenting what used to be a very professional space to the laity as a series of tasks that anyone can do if they have a bit of time. Solicitors’ fees are eye-wateringly expensive (generally quoted as a percentage of the estate value, or as several thousand pounds in fixed fees) and, when you’re already feeling bereaved and money-conscious, it’s an easy place to make savings. On top of this, there’s a wider cultural assumption that solicitors are actively gatekeeping access to processes that ‘ordinary people’ can perfectly well manage themselves if only the legal profession wasn’t so determined to protect its patch.
It’s no surprise, then, that a quick internet search turns up a whole host of websites, fora and step-by-step instructions assuring you that probate is “just form-filling” for simple estates. If there’s a valid will, no disputes, and assets below the inheritance tax threshold, it’s just a case of gathering up the right documents, filling in the probate application form and paying the money into the estate account before distributing it to the beneficiaries under the will’s instructions, is it not?
At this point, perception starts to depart from reality at great speed, and with very dangerous consequences. The whole premise of these guides (which are, to be clear, produced by people in the know, as a guide to professional practice) is that the real risk in probate is form-filling. The actual challenge and therefore the value of legal advice is in knowing what you don’t know. It’s knowing which questions to ask, which stones to turn over, and which legal time-bombs lie buried beneath the surface of even the most apparently “simple” estate. The money you save by not using a probate solicitor is, in effect, the insurance premium you’re declining to pay for insurance against catastrophic personal liability. And unlike most insurance, this is a policy you’ll only wish you’d purchased with the full force of hindsight, once the disaster has already happened.
Let’s look at some examples of the traps and pitfalls that lurk beneath the surface of ‘simple estates’ that a probate solicitor would know to look for, but which can and do trip up well-meaning, intelligent and capable laypeople.
The Forfeiture Rule (who can’t inherit, and what happens if they try)
If you asked the average member of the public whether the Forfeiture Rule was a part of English law, you’d be likely to get a blank stare. They haven’t heard of it. And yet it’s an area where estates can be completely derailed, because of a legal rule most people have never even heard of.
The Forfeiture Rule is an ancient principle of public policy which states that a person cannot be permitted to benefit from their own crime—specifically, that a person cannot inherit from a deceased person whose death they caused or hastened. In its most obvious manifestation, the Forfeiture Rule says that a murderer cannot inherit from their victim.
The rule is, in fact, much more nuanced than that. It applies to people who die because of another person’s criminal actions, but not necessarily to the person who was directly responsible for those actions. The test is (somewhat subjectively) whether the death is too close a connection with the crime to allow the wrongdoer to profit by it. So if a wife beats her husband and he dies, she’s unlikely to inherit under the Forfeiture Rule, even if her assault was not intended to cause serious injury. But if the beating is not the legal cause of death, she may well be able to take the inheritance (unless she was convicted of the criminal offence of cruelty towards the husband).
Here’s a more complicated example. An adult son looks after his elderly mother and her health deteriorates. He administers the wrong dose of medication over a period of months, causing her death. The son is convicted of manslaughter through gross negligence. Is he automatically disqualified from taking under his mother’s will under the Forfeiture Rule?
The short answer is yes. Under the Forfeiture Rule, the son is automatically disqualified from taking under the will or, if there is no will, from taking under intestacy, even though he would otherwise have been first in line to inherit under his mother’s will and even though his mother would almost certainly have wanted him to be the primary beneficiary. The effect of the Forfeiture Rule is to distribute the estate as if he had died before her.
But it gets more complex still: the Forfeiture Rule can be modified or disapplied by the court (where it applies to manslaughter, but not murder) under the Forfeiture Act 1982. A probate solicitor would spot within minutes that an application to the court will be needed to release the estate from limbo, that the interests of the other beneficiaries are to be weighed against the circumstances of the forfeited beneficiary and that distribution of the estate without sorting this out could leave the executor with multiple claimants coming after them.
An executor doing probate work without the help of a solicitor may well have no idea that they need to ask whether any beneficiary had a role in the deceased’s death, and certainly may not appreciate the consequences of omitting to ask. The worst outcome is to distribute to a forfeited beneficiary and then be sued by the rightful beneficiaries to recover those assets.
Assets which pass outside the will
One of the greatest misapprehensions about probate is that a will disposes of everything the deceased owned. This is far from the case. If you don’t know to look for them, there are various assets which pass outside the will, and these are doubly problematic as they can lead not only to mis-distributions but also to assets going unclaimed.
Jointly held property
A very common category of asset which passes outside a will is jointly held property. If the deceased owned their home in joint names with a spouse as “joint tenants” then that property passes automatically to the survivor by the principle of survivorship, and forms no part of the estate. However, if it was held as “tenants in common” (ie distinct shares between two owners) the share of the deceased does pass under the will and does form part of the estate which needs to go through probate. The principle is crucial, but to know which form of ownership applied requires looking at the title deeds and sometimes the Land Registry entries. DIY executors commonly assume joint ownership always means automatic survivorship and so exclude property which should actually form part of the estate, or exclude it and then get it back later, or vice versa.
Life insurance policies and pension death benefits
Both life insurance policies and pension schemes can present the same issue. A life insurance policy written in trust passes to the named beneficiaries outside the estate. But a policy not in trust forms part of the estate and may also be subject to inheritance tax. Pension schemes will usually ask members to complete an “expression of wish” form designating who should receive death benefits, but these are usually discretionary—the pension trustees make the final decision, though they will take very seriously what the member wanted. A probate solicitor will know to contact all pension providers and insurance companies to see what benefits are due, whether they are discretionary or absolute, and what tax consequences are attached to each.
DIY executors often only stumble across these assets by accident, or may fail to discover them altogether, leaving money unclaimed or distributing an estate without including assets that should actually have been part of the inheritance tax calculation.
The ‘administration trap’ and personal liability for executors
The issue that should keep DIY executors awake at night is that when you take on the job of executor, you assume **personal liability** for the proper administration of the estate. It’s not scaremongering, it’s the law.
Executors are responsible for paying the debts of the deceased before they make distributions to beneficiaries. The difficulty here is that there may be debts that you are not aware of. There could be a credit card you didn’t know about. They may have provided a guarantee for someone else’s loan. They may have an old tax liability that HMRC dredge up.
To guard against this risk, the Trustee Act 1925 sets out a procedure for statutory advertising. Notices should be placed in the London Gazette and a local newspaper, giving creditors two months to come forward and make their claim against the estate. A probate solicitor will make this protective measure a condition of acting for any estate of substance. It’s not particularly expensive (usually under £200) but it insulates the executors against personal liability. If you advertise properly and wait the requisite period, then you will be generally protected from personal liability for unknown debts if you have made appropriate searches and enquiries.
DIY executors commonly omit this step, feeling it’s an unnecessary expense or just a formality. After all, they say, we know about the debts. The problem is, of course, that “knowing” is not the same as “knowing for certain”. If you go on and distribute the estate, and then a creditor crops up with a valid claim, then you are personally liable to pay that debt. Even if you have already distributed the money to the beneficiaries and even if they won’t or can’t return it.
Imagine that you distribute a £200,000 estate to three siblings and then six months later discover that the deceased owed £30,000 in tax on an undeclared rental income. HMRC will be coming for you, the executor, for that £30,000. The beneficiaries have no legal obligation to return the money they received, though you can try to pursue them for it in expensive litigation. You, however, are left holding the liability personally.
The probate solicitor will not just know about statutory advertising. They will also understand the myriad of potential claims against estates and will, as a matter of course, enquire as to divorce status (potential claims under Inheritance (Provision for Family and Dependants) Act 1975), dependent children/adults, lifetime gifts that may be challenged and any business liabilities/partnership obligations. It’s not pessimism. It’s simply professional risk management that stops executors being personally ruined.
Demystifying Probate Solicitors: What They Actually Do
We’ve all heard the myth of probate solicitors charging thousands of pounds to fill in a few forms, when a capable adult with an internet connection can do the job for free in a few hours. This narrative is so prevalent that it becomes dangerous, as it fundamentally misunderstands what probate administration is and isn’t.
Firstly, probate solicitors provide risk management. Probate solicitors have seen hundreds or thousands of estates pass through their hands, including the ones that went spectacularly wrong. They know which questions to ask and which assumptions to challenge; they know which things that look obvious and easy may contain latent landmines. When a probate solicitor reviews an estate, they’re not just ticking the boxes to get the bank accounts and shares to the beneficiaries; they’re looking for the skeletons. Did the deceased own a property abroad? Were there any lifetime gifts made within seven years of death? Do any surviving partners or children have a claim under the Inheritance Act? Was the will properly executed, or is there room to contest it? The DIY executor doesn’t know to look for these things until it’s too late, and the skeleton jumps out at them with a bonfire of liability.
Secondly, they serve as an emotionally neutral third party. No one’s at their best when grieving. Adult siblings who have maintained a polite relationship for decades can become bitter rivals in the blink of an eye over a perceived slight in the division of their parents’ estate, especially where one child has been more closely involved in the parents’ lives and care or where the value of the estate has turned out to be different to what the parents led their children to expect. Where the executor is also a beneficiary (highly common in smaller estates), every action they take is likely to be scrutinised for evidence of self-dealing or favouritism by the other family members. The probate solicitor provides a layer of professional detachment, they can provide unwelcome news (“I’m sorry, but the estate is worth much less than you thought”) or bad breaks (“Your father was twice married, so his second wife has a claim on the estate”) without being accused of bias or having their judgement tainted by relationships with the beneficiaries. They can also serve as a mediator and explainer to family members who cannot see the logic of the law or are digging in their heels over entitlements, providing cover for an executor who may want to do the right thing by the beneficiaries but is feeling pressured by other family members.
Thirdly, they protect executors from personal liability. This point is absolutely critical, and one that nobody outside the probate profession seems to understand. Probate solicitors carry professional indemnity insurance for errors and omissions, which protects their clients (in this case, the estate) against loss as a result of mistakes or omissions on the solicitor’s part. Miss a debt? Misinterpret the will? Their insurer picks up the tab. When you act as your own executor, you carry the risk personally. The probate solicitor’s fee is an insurance premium, a transfer of that risk from your personal balance sheet to an insured professional. For an executor with personal assets to protect, whether that’s a home, savings, a pension or a share of an inheritance, that risk transfer alone justifies the cost.
Fourthly, they bring experience and knowledge to the realisation of complex assets. We’ve mentioned some of the asset realisation issues above. The process of selling a house, transferring shares, closing bank accounts, dealing with pension providers and so on: these all have potential pitfalls and practical challenges. Should you sell the house before or after probate is granted? How do you value shares for IHT purposes? What if the deceased owned shares in an unlisted company? A probate solicitor deals with these issues day in, day out and knows the most effective, tax-efficient way through. They also have relationships with estate agents, valuers, other professionals, and can streamline the process accordingly.
Finally, they provide finality. This isn’t an area of law where “good enough” is good enough. Probate solicitors not only know what needs to be done but do it properly. When a probate solicitor finalises their accounts of an estate, obtains the approval of the beneficiaries and issues a final distribution report, that’s it. Case closed. The estate is properly wound up, all of the boxes have been ticked, everything has been done as required by law and an executor can close the file, move on and put the estate behind them. DIY executors often find themselves subject to enquiries, complaints and arguments from beneficiaries years down the line, never quite confident that they did everything they should have done and worried that some unknown liability might be discovered and emerge from the shadows years later.
Professional Guidance is an Investment, not an Expense
The idea of the ‘simple estate’ is largely a myth, or at least far rarer than most families would assume. In our experience, every estate has its skeletons, often lurking just below the surface of what looks straightforward on paper. Probate solicitors only ever find these things by combing through every detail of the estate, and it’s easy to get a seemingly innocuous job done wrong and then be left in the dark as to the full consequences for months or years until it’s too late. The question is not whether you are personally capable of filling in the probate forms (you most likely are) but whether you are willing to stake your own financial security on that ability.
Hiring a probate solicitor is not an admission of ignorance or incompetence, nor is it an unnecessary indulgence for the super-rich. It’s a recognition that estate administration is a specialist area of law in which the costs of mistakes fall personally on executors, and where professional service providers are able to offer both risk management and peace of mind. The fees charged by a probate solicitor, typically a few thousand pounds, pale into insignificance compared to the personal liability that an executor assumes in DIY administration, and are a drop in the ocean of potential litigation costs if something goes wrong.
Professional administration is also an investment in family harmony. Estates are often flashpoints for family conflict, and bringing in a neutral third party to manage the process, communicate with beneficiaries and make difficult decisions for legal reasons rather than emotion or family dynamics can save relationships that would otherwise be shattered by the stresses of grief and financial complexity.
As with Margaret, who we met at the start, the practical result for some DIY executors is that they end up instructing a probate solicitor anyway to get things properly tidied up. But the additional legal fees (often tens of thousands of pounds) come on top of the time, stress and disruption of DIY administration, and the shadow of wondering whether you’ve covered everything correctly never quite goes away. In our experience, it’s rare to meet a DIY executor who wouldn’t instruct a probate solicitor from the outset if given the chance to start again. The benefits of expert advice and administration are simply that significant.
To return to Margaret, her story ended well in the end, but it cost her another £15k in legal fees and eighteen months of stress and uncertainty. The £3k she saved by doing probate herself proved to be the single most expensive economy she ever made. When she was asked for her advice for others in the same situation, her response was: “I thought I was being sensible and saving money. I was actually being penny-wise and pound-foolish. If I could go back, I’d instruct a probate solicitor from day one and sleep easy knowing it’s being done properly.”
That, right there, is the value proposition of probate solicitors: not just technical expertise, but the peace of mind of knowing your loved one’s affairs are being wound up properly, compliantly and conclusively, allowing you to grieve and move on with your life instead of lying awake at night worrying you missed something. Seen in that light, probate administration assistance isn’t an expense at all; it’s one of the smartest investments a family can make.