The Hidden Dangers of DIY Probate

Dealing with a loved one’s estate yourself can seem like a sensible way to save money. But probate carries personal responsibilities, and personal liability, that many people do not appreciate until something goes wrong.

When someone dies, their affairs need to be wound up. Assets must be identified and valued, debts and taxes paid, and what remains distributed to the people entitled to it. The legal process that underpins this is known as probate, and the person responsible for carrying it out is the executor named in the Will, or the administrator if there is no Will. If you are in the latter position, our guide to what happens if there is no Will explains how the intestacy rules decide who inherits.

With online applications now available and plenty of guidance on the internet, it is understandable that some executors decide to handle probate themselves. For a very simple estate, a modest bank balance, no property and a clear Will, that may be perfectly manageable.

However, many estates are not as simple as they first appear, and the consequences of getting things wrong fall on the executor personally.

What does an executor have to do during probate?

The role of an executor or administrator is wider than many people expect. Typically it involves:

• Registering the death and locating the original Will
• Identifying every asset and liability, and obtaining formal valuations
• Completing the correct Inheritance Tax forms and paying any tax due
• Applying to the Probate Registry for a Grant of Probate or Letters of Administration
• Collecting in assets, closing accounts and selling property or investments
• Settling debts, funeral costs and administration expenses
• Dealing with income tax and capital gains tax during the administration period
• Preparing estate accounts and distributing the estate in accordance with the Will or the intestacy rules

Each of these stages has its own rules, deadlines and potential pitfalls.

Executor personal liability: why probate mistakes fall on you

This is the point most often overlooked. An executor who makes a mistake, even an honest one, can be held personally responsible for any loss to the estate or to a beneficiary.

Examples of situations that can lead to personal liability include:

• Distributing the estate before all debts and taxes have been paid
• Under-declaring the value of the estate to HMRC
• Paying the wrong beneficiaries, or paying beneficiaries the wrong amounts
• Failing to identify a valid later Will
• Selling assets at an undervalue
• Overlooking a claim against the estate

If the money has already been paid out to beneficiaries and cannot be recovered, the executor may have to make good the shortfall from their own pocket.

Inheritance Tax mistakes in probate can be costly

Inheritance Tax is one of the most complex areas of estate administration. Executors must decide whether the estate is an “excepted estate” that can be reported in a simplified way, or whether a full Inheritance Tax account is required. Getting that decision wrong can delay the grant and lead to penalties.

Common areas of difficulty include:

• Valuing property, shares, business interests and personal possessions correctly
• Identifying gifts made in the seven years before death, which may need to be declared. Our guide to Inheritance Tax gifts and allowances explains which gifts count and which are exempt
• Claiming the reliefs and allowances the estate is entitled to, such as the residence nil-rate band, transferable allowances from a late spouse, or business and agricultural property relief
• Understanding the deadlines: Inheritance Tax is generally payable within six months of the end of the month of death, after which interest starts to accrue, and the account itself must be delivered within twelve months

The rules are also changing. From April 2027, most unused pension funds and death benefits are due to be brought within the scope of Inheritance Tax, which will add a further layer of complexity for many estates. Executors who are unfamiliar with these rules can easily pay too much tax, or too little, and both outcomes carry consequences.

Probate without a solicitor: estates that look simple but are not

Some of the most difficult estates are those that seemed straightforward at the outset. Warning signs include:

• A home-made or unclear Will, or a Will that has been amended by hand (our article on whether you can make your Will on WhatsApp shows how easily an informal Will can fail)
• Beneficiaries who cannot be traced, or who have died before the person who made the Will
• Family members who are unhappy with the Will and may bring a claim
• Property held in a trust, jointly with someone other than a spouse, or overseas
• A business, farm or let property
• Assets still held in the name of a spouse who died earlier and whose estate was never fully dealt with
• Digital assets, cryptocurrency or online investments
• Debts that exceed the value of the estate

Any of these can turn a “simple” probate into a lengthy and stressful process. We looked at some of these issues in more detail in our article on probate delays, digital assets and Inheritance Tax risks.

Claims against the estate and when it is safe to distribute

Certain people, such as spouses, children and financial dependants, may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they believe the Will or the intestacy rules fail to make reasonable provision for them. Such claims generally must be brought within six months of the grant.

An executor who distributes the estate too early, without allowing for the possibility of a claim, or without placing statutory notices to alert unknown creditors, may find themselves personally exposed. A solicitor will know when it is safe to distribute and what protective steps should be taken first. Where a dispute does arise, our contentious probate team can advise executors and beneficiaries alike.

Probate delays and family tension

Probate is time-consuming. Even a relatively straightforward estate involves a considerable amount of correspondence, paperwork and chasing. For an executor who is grieving, working and perhaps caring for others, the burden can be significant.

It is also common for tensions to surface within a family during the administration of an estate. Beneficiaries may question decisions, disagree about the sale of the family home or become frustrated with the time things are taking. When the executor is also a family member, those tensions can become personal. An independent professional can act as a buffer, keeping the process on track and reducing the risk of relationships being damaged.

When a probate solicitor makes sense

Instructing a solicitor does not mean handing over control. Many executors choose to have a solicitor handle specific elements, such as the Inheritance Tax account or the grant application, while dealing with the rest themselves. Others prefer a full estate administration service so that they can step back from the details.

In either case, reasonable professional fees are payable from the estate, not by the executor personally, and the cost is often modest compared with the potential cost of a mistake. Our probate and estate administration pricing is published online, so you can see what each level of support would cost before you decide.

Acting as an executor? Speak to our probate solicitors in Eastbourne, Bexhill-on-Sea and Hastings

If you have been named as an executor, or you are dealing with the estate of someone who died without a Will, our probate solicitors can advise you on your responsibilities, handle as much or as little of the process as you wish and give you confidence that the estate is being administered correctly. Our Private Client team includes members of STEP, the Society of Trust and Estate Practitioners, and has been supporting families across East Sussex since 1981, with fixed fee options for many probate services.

To talk through the estate you are dealing with, call us on 01323 644222, email enquiries@stephenrimmer.com or book a free initial 30-minute consultation at our Eastbourne, Bexhill-on-Sea or Hastings offices.

Disclaimer: The content of this website blog is for general awareness and insight. This is not legal or professional advice and readers should not act upon the information provided, they should seek professional advice based on their own particular circumstances. The law may have changed since this article was published.

FAQs: DIY Probate

Do I always need probate?

Not always. Small estates, or those where all assets pass automatically to a surviving joint owner, may not require a grant. However, most estates that include property or significant savings and investments will.

Can I be held personally responsible for mistakes as an executor?

Yes. Executors owe duties to the beneficiaries and to HMRC, and can be personally liable for losses caused by errors in the administration of the estate.

How long does probate take?

It varies. A simple estate may be completed in a matter of months, whereas more complex estates, particularly those involving Inheritance Tax, property sales or disputes, can take a year or longer.

Are solicitors’ fees paid from the estate?

Yes. The reasonable costs of administering an estate, including professional fees, are payable from the estate before it is distributed to the beneficiaries.