Probate and personal liability: Why executors should seek legal advice

Probate can be very complicated, with executors assuming personal liability for mistakes.

When someone dies in England and Wales, their estate doesn’t simply pass to their relatives; it enters a formal legal process known as ‘probate’.

Executors are appointed under a will. During probate, assets and liabilities must be identified and collected in or settled and inheritance tax (and other relevant taxes) must be calculated, reported and paid to HM Revenue & Customs. If there is no will, there are statutory rules about who can apply to be the administrators of the estate. The administrators have the same duties and responsibilities as executors.

Many people assume probate is a clerical exercise that can be done without professional help.

While some estates are straightforward, many involve legal complexity, particularly where there are trusts, business or agricultural assets, multiple properties, foreign assets or potential claims against the estate. In these circumstances, probate is not simply an administrative exercise, and the responsibilities of executors can be significant.

Engaging a probate professional, such as a solicitor, is not simply about convenience (though, during a stressful and emotional time, it is very convenient to instruct a probate professional) – it is about risk, liability, tax exposure and legal protection. Executors who handle probate themselves take on a level of personal, financial and legal risk that they are often unaware of when they agree to act.

Executors have personal legal responsibility

When you act as an executor of an estate, you become personally responsible for administering the estate correctly. This means you are responsible for administering the estate in accordance with probate and tax law. Acting in good faith does not remove this responsibility.

Key duties include:

• Interpreting the Will accurately, including any trusts or conditional gifts;
• Paying tax and liabilities of the estate
• Ensuring the correct parties benefit from the estate;
• Protecting estate assets during the administration period;
• Addressing claims from creditors or other third parties; and
• Ensuring the estate is not distributed prematurely.

By instructing a probate professional, you shift your risk to someone who is insured, regulated and legally accountable. If something goes wrong, they (not you) carry the financial consequences.

Common areas where executors are exposed to risk

Executors often assume the main consequence of an error is delay.

In reality, the risks can be far more serious, particularly in estates where inheritance tax is payable.

Common examples include:

Distributing the estate too early – if you pay beneficiaries before the tax position has been finalised, and then further tax is due, HMRC can pursue you personally and beneficiaries are not obliged to refund you.

Failing to protect against unknown creditors and missing beneficiaries – if you do not place the relevant notices, unknown creditors and missing beneficiaries can claim against you personally even after the estate has been distributed.

Misinterpreting the will – wills often contain trusts, conditions and technical wording that requires specialist interpretation If you get this wrong as an executor, this can lead to disputes or claims against you.

A probate professional shields executors from these risks by using formal mechanisms (and legal knowledge) to protect executors.

Business and agricultural estates add layers of complexity

Estates that include business or agricultural assets require particular care. Issues commonly encountered include:

• Availability and correct application of Business Property Relief (BPR) and Agricultural Property Relief (APR).
• Valuation of trading businesses, partnership interests or company shareholdings.
• Interaction between succession planning and probate administration.
• Post-death changes to business structures.
• Continuity of trading during the administration period.

These estates require careful legal oversight to ensure assets are dealt with correctly, beneficiaries’ interests are protected, and disputes are avoided. Poor handling can lead to litigation, delays and unnecessary cost.

Issues that are easily overlooked

Executors acting without professional advice may miss issues such as:

• A property held as tenants in common instead of joint tenants
• Not making a relevant claim for relief for inheritance tax
• A trust hidden in the wording of a will
• A lifetime gift that triggers inheritance tax
• A business interest that qualifies for relief
• Possible tax planning strategies

These issues can be costly and time consuming to correct once they crystallise and can result in disputes without professional support.

Professional support can save time and sometimes reduce tax liabilities

Our legal services team works alongside our tax specialists to determine what information is required and how to present it. They have systems for valuations, notices, tax forms and asset tracing. Instructing a professional reduces the risk of rejected forms, incorrect valuations, and delays with HMRC or the Probate Registry.

Importantly, tax planning does not end when someone dies. We can advise on post death variations, trust restructuring, capital gains rebasing and business property and agricultural property reliefs. All of these can mitigate the inheritance tax payable by an estate or beneficiary.

Can executors administer an estate themselves?

Yes, but doing so means accepting personal legal and financial responsibility for every aspect of the process. For straightforward estates this may be appropriate. For estates involving higher values, multiple properties, trusts, business interests, lifetime gifting, or potential inheritance tax exposure, professional advice can provide reassurance, protection, and clarity.

Acting as an executor can be complex and stressful, particularly where legal or family issues arise. Our legal services team offers experienced, regulated legal support to guide you through the probate process and protect you from unnecessary risk.

To find out how we can assist with the administration of an estate, please contact our probate team today.