Craig Williams, partner and wills and litigation expert at B P Collins, has warned about the potential risk of ‘DIY probates’ after new High Court statistics revealed that the number of claims for mishandled decreased estates has tripled over the last year.
He says that many people are not aware of the legal implications of taking on the role of executor and the fact they can be sued for their mistakes if anything goes wrong.
Data from the Chancery Division of the High Court shows that the number of claims lodged for the breach of fiduciary duty — failure by executors to properly carry out their obligations — increased from 107 in 2012 to 368 in 2013.
The claims ranged from theft of assets by executors and fraudulently favouring some beneficiaries above others, to simple mistakes made by representatives in navigating the rules and procedures that apply to estate administration.
Williams said: ‘Often non-professional executors such as family members or close friends will choose not to take advice from a solicitor in order to save the estate money but, as these figures show, doing so can be a false economy if the executor’s actions are challenged.
‘Taking on the responsibility of distributing someone’s lifetime possessions, wealth and property is probably one of the most important tasks you will ever be given. To the testator (person making the will), we would say take great care in choosing who you appoint, and to the potential executor, we would urge them to take professional advice when the time comes to handle the probate.’
He believes the increase in estate administration claims — together with a similar rise in the number of contested probate claims in relation to wills and inheritance — is also partly due to today’s more complex family structures, larger estates, and the availability of information online.
‘When you read about being an executor, it can appear to be a more straightforward task than it really is and that may have contributed to an increase in probate applications without any input from a legal adviser,’ he continued.
‘While we are not saying it is wrong to appoint family or friends into the role, we would encourage people to sit down and talk through their plans in detail, ideally with a lawyer, and to understand all the implications. For example, if an individual is appointed as an executor and gets it wrong, they open themselves up to personal liability, which many people don’t realise.’
One solution, he says, is to appoint a professional executor alongside a lay person, ensuring all legal procedures are followed, reducing the risk of litigation. Williams says taking professional legal advice at every step of the way, will help to save costs in the long run.
‘Getting proper advice when writing your will can help to ensure that all potential claims on an estate are addressed at an early stage, while giving careful consideration, with a professional, to the appointment of your executors can help the probate process to run more smoothly,’ he concluded.