Throughout the probate process, executors/administrators must juggle legal duties, tax obligations and a significant amount of paperwork, often whilst they are still grieving. It is understandable that many people feel unsure about where to begin. Unfortunately, even small mistakes can cause delays, legal issues and financial consequences.
That’s why it is so important to be aware of the common pitfalls before they become an issue. Below, we have outlined three key areas that mistakes typically fall under:
- Inaccurate Estate Valuations
When applying for the Grant, the value of the estate must be declared in the Probate Application. One of the personal representative’s first responsibilities is to ensure that a full and accurate valuation of the estate has been obtained.
While it may seem harmless to rely on rough estimates or online valuations, doing so can result in undervaluing key assets, such as property, or overlooking less obvious liabilities such as personal loans, credit cards or funeral expenses. These errors can have serious consequences.
Where Inheritance Tax (IHT) is payable, HMRC must confirm that the correct forms and tax payment have been received before the Probate Registry will issue the Grant.
If HMRC disputes the figure provided, this can cause significant delay and costs in the administration of the estate.
Underpayment of tax can also trigger interest and penalties, while overvaluing the estate could mean paying more tax than necessary, ultimately reducing the final inheritance received by the beneficiaries.
Personal representatives should therefore take care to identify all assets and liabilities before applying for probate.
Practical steps include:
- Obtaining a formal RICS property valuation.
- Preparing a detailed inventory of all known assets and liabilities.
- Placing statutory notices in the London Gazette and a local newspaper to protect against unknown creditors.
- Using an Invalid Will, or Misinterpreting Terms
Executors often see locating the Will as the natural starting point and are keen to move forward with carrying out its instructions. However, it is important to approach this stage with caution. Just because a Will has been found does not guarantee that it is valid, or that its contents are legally clear.
A Will can be invalid for several reasons. Section 9 of the Wills Act 1837 sets out the requirements for a legally valid Will, including that it must be properly signed by the testator and witnessed by two independent individuals. A Will may also be invalid if a more recent Will has been made, which can expressly or implicitly revoke the earlier version. If an executor relies on an invalid or outdated Will, they risk the estate being distributed incorrectly, potentially triggering disputes and claims from disappointed beneficiaries, and even personal liability.
Even where a Will is legally valid, that doesn’t mean it is straightforward to interpret. Wills are legal documents, which often contain legal language, outdated references, or gifts that are no longer relevant. Some executors fall into the trap of interpreting the Will based on what they believe the deceased would have wanted, rather than what the document actually says. This can result in missing gifts, incorrect distributions, and future claims (especially once the Will becomes a public document once the Grant of Probate has been acquired).
Where there is no valid Will, the rules of intestacy are then followed, rather the wishes set out in the invalid document, even if the executors believe it is what the deceased would have wanted.
How to avoid:
- Confirm that the Will is valid, properly executed, and the most recent version. If there is any doubt, a formal Will Search can be carried out to try and protect the personal representatives.
- If the Will contains complex language, unclear provisions, or is difficult to read, seek legal advice before interpreting or acting on it.
- Never rely on assumptions or personal beliefs about the wishes of the deceased.
- Process and administrative errors
Even when executors are acting in good faith, administrative mistakes are one of the most common causes of delay, confusion or conflict in the probate process.
For some executors, grief or uncertainty can cause a delay in taking action. Although there is no statutory time limit for applying for probate itself, HMRC has a time limit (the end of the sixth month from the month in which the date of death occurred) for the payment of any IHT due. Missing this deadline therefore risks facing interest charges. There is a further time limit for submitting the inheritance tax account, being the end of the twelve months from the month in which the date of death occurred.
Even where no tax is payable, delaying the process can still cause frustration, particularly if beneficiaries are kept waiting for their inheritance, which can lead to complaints or tension in the family.
On the other hand, problems can also arise where executors distribute the estate too quickly. If beneficiaries are pushing for updates or early distributions, an executor may feel compelled to oblige. However, distributing assets before all debts, liabilities or taxes are paid can result in the executor being personally liable if issues later arise.
Another common area for error is paperwork. The probate process involves numerous forms, schedules and supporting documents, and mistakes are easily made. An executor may use the wrong IHT form(s), forget to include certain assets or submit incomplete paperwork, which can cause the Probate Registry or HMRC to reject or raise further enquiries.
Finally, a lack of clear communication with the beneficiaries can lead to frustration, mistrust and unnecessary tension. Executors aren’t legally required to share every detail about the administration process. However, keeping the beneficiaries informed about the progress can help manage expectations and avoid disputes, especially where the process takes many months.
What to do:
- Begin collecting information and seeking guidance as soon as possible after death.
- Avoid distributing the estate until all liabilities have been settled.
- Ensure the 6-month statutory time limit for claims under the Inheritance (Provision for Family and Dependants) Act 1975 has passed.
- Use the correct IHT and probate forms and seek advice if unsure.
- Keep beneficiaries updated at key stages to prevent misunderstandings.
The Importance of Professional Legal Guidance
As discussed, even the most well-meaning executors or administrators can fall into common probate mistakes, and even the small missteps can have serious consequences, from delays and disputes to personal financial liability.
Seeking professional legal guidance early on is one of the most effective ways to avoid these pitfalls. A solicitor can offer advice on interpreting a Will, completing and navigating complex paperwork, or simply help you understand the role and responsibilities expected of you as an executor or administrator. With the right support, you can approach each step of the process with better clarity and peace of mind.
Get in Touch…
If you would like to talk to one of our friendly, specialist team at Harding Evans in relation Probate and Estate Administration, we have years of experience and can talk you through the whole process. Visit our website at www.hardingevans.com, email: wills_probate@hevans.com or call us on 01633 492008.
