Gavin Faber, partner in the wills, trust and estates disputes team at Irwin Mitchell, explains what can go wrong for the DIYer.

DIY probate has been on the rise over the past few years. as people are increasingly turning away from specialist advice and handling estate administration themselves when someone dies. But at what cost?

For simple, straightforward estates and wills, the DIY approach can work out fine, and can greatly reduce costs. But where estates are larger, or more complex, perhaps involving multiple children or second or third marriages, not seeking legal advice can turn out to be a false economy.

Mistrust and disputes

Wills and probate disputes have risen in recent years. It can be difficult to track, as most claims don't get to court. But at Irwin Mitchell, we receive on average about 70 new enquiries a month, and this figure is growing rapidly. 

Given its specialist nature, it's inevitably a consequence of DIY probate that there will be times where estates aren't properly administered, whether that's deliberate, or through lack of knowledge.

Where there has been a perceived lack of progress, or where beneficiaries feel that they have not been fully kept informed, mistrust can arise. When the executor or administrator is approached by a beneficiary to find out what is going on, it can be taken as a criticism, which can quickly lead to a complete breakdown in the relationship and the start of a probate dispute. 

So, even if the executor or administrator has acted appropriately, if they have not adequately addressed the issues or concerns genuinely raised by a beneficiary in a timely way, help is often required. 

An executor or administrator can often take great offence, especially if they have spent a considerable number of hours dealing with the administration for no financial reward. The root of the difficulties is often a lack of communication, rather than any breach of duty or improper conduct. 

The time factor

If you're considering DIY probate, can you fully commit the time needed to the process? The administration of an estate can take an inordinate amount of time as a result of delays by third parties in progressing matters, which can become incredibly frustrating. Certainly, where an estate involves land and property or complex investments, it may not be as straightforward to deal with as you may assume.

The risks of making mistakes (and the penalties)

An executor or administrator should also bear in mind that should they make an error, even if it is entirely innocent, they will be financially responsible for any loss caused to the estate.

Also, HMRC is taking an increasingly aggressive stance on errors, and is now more likely to challenge the tax forms and valuations. The tax rules relating to inheritance tax liabilities can be complicated, and there are financial penalties for getting things wrong.

As a result of the rise in DIY wills, I carry out an increasing amount of work trying to establish what work has been done in the administration of the estate, and whether an executor or administrator has breached their duties to the beneficiaries. 

A neutral approach

It can be difficult for an executor or administrator to remain neutral, especially if they have known the family members involved for many years. It can very quickly lead to a situation where they are accused by all parties of taking a partisan approach and adopting another party's position.  

If a court finds that the executor or administrator has not been neutral in the administration of an estate, the executor may find themselves subject to a court order requiring them to pay the other party or parties costs (adverse costs order). So if there is a possibility that there may be a dispute about the will or estate, take early advice to protect your position. 

Trust and honesty

Another difficulty may arise when the testator has created a problem for loved ones by promising various members of the family the same family heirloom. This can in itself very quickly create a huge amount of mistrust between the parties, as they 'know' that the other party is lying. It is by exploring the matter objectively, and encouraging the client to look at the possibility that the other party is, in fact, telling the truth, that can push the matter towards resolution. 

Talk about your will

It's natural to want to avoid talking about the event of your death. But it's important to discuss your will with your loved ones. It's often the shock of the contents of the will, at a time when family members may be suffering from significant feelings of loss and upset, that fuels disputes. 

The most obvious advice to help you to assist your loved ones when the time comes to administer your estate is to make a will having taken proper advice. Have a detailed discussion of risks, such as potential challenges or claims from individual family members who may go on to apply for reasonable financial provision from the estate (family provision). 

At the very least, a record of the instructions and reasons for making a will in the form that you have should be made, so that it can be disclosed (if appropriate) in the event of a subsequent dispute.

About the author

Gavin Faber, wills, trust and estate disputes partner at Irwin Mitchell, specialises in contentious trust and probate disputes, and has expertise in dealing with high value and complex trust and estate claims, as well as all types of will and trust disputes.