28th August 2014
Why you should appoint a professional to manage probate
1. Many people do not have a will in place.
With a third of people aged over 60, and as many as 60% between 45 and 59, not having a will* issues over probate are becoming increasingly common. Not having a will in place can result in the estate passing to people you would not wish to benefit, or even to the government.
2. Dealing with probate is time consuming.
There are many forms to fill in and you need to understand the complexities of the many issues that can arise.
3. The executor is legally liable for any mistakes that are made.
According to probate services co-ordinator, Final Duties, about 29% of executors decide to deal with Probate themselves. However, the work can be onerous with the executor being personally accountable for any errors. Recently released government court statistics show that the number of claims against executors for not dealing with the estate correctly have more than tripled in the past year.**
4. Dealing with probate for a loved one is upsetting.
Unsurprisingly, many people find it difficult and emotional to have to keep going through the papers of someone they knew and loved. Consequently 71% of people do decide to seek help from a professional. It can also cause family feuds.
5. If there are charities that are entitled to receive a share of the estate, they will need to be consulted in decisions to sell property and shares.
A professional understands the need for charities to comply with the Charities Act and their exemption from taxes including inheritance tax and capital gains tax. Where there is a mixture of beneficiaries entitled to a share of the estate this can involve complex inheritance tax calculations.
In March 2014, the Lord Chancellor gave his approval for Chartered Accountants to become an approved regulator and licensing authority for the purposes of probate activities and alternative business structures (ABS).
So with more choice now available, why should you appoint a solicitor?
1. Solicitors are the only entity apart from the Probate Registry that can draft Oaths for executors and administrators.
Personal applications must be made to the court in all other cases. Using a solicitor can make this unnecessary and make the process smoother.
2. A track record of successfully handling probate.
A law firm that has been handling this work for many years will be able to draw on all its experience in handling complex probate matters. A good law firm has all the background legal knowledge required to deal successfully with all the complex issues, such as will interpretation and the intentions of the deceased, Rules of Intestacy, transferable nil rate sums, gifts to children, trusts, income tax, inheritance tax, capital gains tax and property matters.
3. Accountants have an agreed lower indemnity level than solicitors.
So, if something goes wrong, their level of professional indemnity insurance may not cover the value of the estate. This is particularly so with the value of property prices increasing.
4. Years of expertise and specialist knowledge are critical to the successful execution of probate for the family.
The level of experience that a firm, such as Moore Blatch, can offer is more than likely to supersede that of most probate accountants. For example, Moore Blatch has specialist lawyers who are able to deal with the needs of vulnerable executors and beneficiaries and advise on how beneficiaries may best deal with their inheritance.
5. When contentious matters arise, background legal knowledge is key.
Such issues include large lifetime gifts using up the nil rate sum, difficulties over distribution of chattels and specific gifts. A sound legal infrastructure is also necessary in order to understand fully the nature of trusts and be able to deal with issues, such as Deeds of Variation, preparation of wills and give additional advice to beneficiaries – a law firm is able to offer a much more holistic approach to probate.
Commenting on handling probate, Joyce Bradbeer, a probate specialist and Partner at Moore Blatch solicitors said; “Where some accountants may view applying for probate as just a form filling exercise, a solicitor will tend to know the family and will offer support and advice to surviving family members. They also have the legal expertise to prepare Lasting Powers of Attorney, provide advice on care fees, asset protection and inheritance tax planning."
“Often, as lawyers, we have a lot of background knowledge about our clients and have dealt with generations of the same family. Where there is no family we can offer practical help in a personal and very caring way such as arranging chattels valuations, property valuations, property checks, clearing the property, searching for assets, selling the family car and even clearing the fridge and rehousing pets.”
“More often than not, a law firm will have dedicated teams to deal with sales of property, contentious probate and trusts. At Moore Blatch we have a dedicated probate team and also an in-house chartered tax adviser. Our probate team has probate experts that only act in probate matters; this ensures that cases are not left because of distractions from other types of work. We also work closely with third party advisers, such as valuers, surveyors and IFAs.”
Source: *according to research carried out by the Probate Practice: http://www.probateaccountants.co.uk/2014/05/news-from-the-probate-practice-survey/
Source: ** Law Society Gazette
Author: Joyce Bradbeer