Probate Risk Management

Probate is the process of determining who has the legal authority to act on behalf of the person who has sadly passed away, collect their assets, pay any debts, and distribute what is left to the right people.

There are two routes to probate:

1. There is a Will (often called testate): the people named as executors can apply for the Grant of Probate. There can be up to 4 executors, who may be family members (including beneficiaries) or professionals.
2. There is no Will (often called intestate): someone, usually a family member, can apply for Letters of Administration to become an administrator of the estate.

The legal term for either is called the Grant of Representation - a document from the Probate Registry confirming who has the legal authority to administer the estate.

Last year, over 328,000 Grants were issued in England and Wales (according to the Probate Service via IRN Reports), and hundreds of thousands are typically issued each year.

So that’s a lot of executors and administrators all being concerned about similar things to you.

The above is a legal definition that you will find on most solicitor and probate provider websites, but what most are really bad at is explaining your liability.

Insuristic is focused on advancing education in probate risk management and delivering tailored insurance solutions.

Whatever role you have, it needs to be taken seriously, as it will take up a huge amount of your time, as well as exposing you and the others undertaking the role to significant liabilities for errors, omissions, conflicts of interest (particularly if you are also a beneficiary) and third-party claims, many of which may surface years down the line.

Any claim that you are liable for could seriously threaten your financial future.  If it is a large claim, you could be putting your home, savings and other assets on the line.

Most people in your situation are considering doing this themselves, and it is something you should think carefully about.  Any legal advice (and insurance) can be treated as an estate expense.

Here is the thing – you can’t insure yourself against making a mistake or missing something, only a solicitor or regulated probate accountant can (through their Professional Indemnity Policy).

Whether you have a solicitor or not, you should arrange adequate insurance:

• You are liable for insuring the property, which includes if a claim is declined or reduced because you bought a policy with gaps in cover or you underinsured the property. Protect your liability and insure the property as early in the process as possible.  Review Insuristic’s Probate Property Insurance, which has been designed for this purpose.
• When you have the Grant or Letters of Administration, your liability for third-party claims starts, so arrange Probate Legal Indemnity Insurance as soon as possible to protect against a range of risks, including claims under The Inheritance (Provision for Family and Dependants) Act 1975, unknown creditors, missing Wills, or claims from missing or unknown beneficiaries (commonly insured by administrators of intestate estates or executors where there is an ambiguous Will).

You only need to search for “contentious probate" on Google to see how many legal firms operate to resolve disputes during the probate process or after the Grant has been received.

You should seek legal advice if you are concerned about any of this and seek to protect your liability.

The short answer is it depends, and if you do it yourself, you should balance the cost, with your lifelong liability, as getting the Grant doesn’t mean you have done it correctly (which is a common misconception), it just means the Probate Registry has said you’ve provided enough information for them to base their decision on – they do not check for completeness or accuracy.

Can you do probate yourself?

Yes. If you're named as an executor, or you're entitled to apply as an administrator where there's no will, you can act as the personal representative (PR) yourself without appointing anyone.

Plenty of people handle an estate themselves. According to IRN Legal, in 2024, 42.3% of Grants in England and Wales went to private individuals.

The role means applying for the Grant, valuing the estate, settling debts and any tax, collecting in the assets, distributing what's left to the right people, and keeping proper estate accounts along the way. None of it requires legal training, and for a straightforward estate, the Probate Registry's process is designed for ordinary applicants.

But what you need to know is:

• The probate registry does not tell you if you have made a mistake, missed something, or whether there are likely to be issues down the line.
• You cannot insure yourself for making a mistake or missing something; only a solicitor (or an accountant regulated for probate) can do this under a professional indemnity insurance policy.
• Your liability as a personal representative for errors in administering the estate can last indefinitely; it doesn't simply expire once you've distributed. Third-party claims against the estate are generally time-bound, though some are not. You can see the timeframes for each type of claim in our probate risk timeframes.
• Many in your situation underestimate:
  • The time it takes to pull everything together, apply for Probate and then distribute.
  • How long it will take the Probate Registry to provide the Grant – it really varies, and there is currently no consistency.
  • The pressure they will get from the beneficiaries.
  • How long will it take to sell the property and finalise the estate?

Many people that we speak to towards the end of the process underestimate the amount of work involved and the risk they have taken on (usually after reading our content).  Many wish they had appointed a professional when comparing the cost, their time and risk.

Do you need a solicitor for probate?

This really depends on how comfortable you are with the liability you take on, as well as the estate's complexity and size.

There are two options that are worthy of consideration:

1. Appointing a solicitor to apply for probate. A solicitor must carry professional indemnity insurance to be able to operate (as required by the Solicitors Regulation Authority), so if they make a mistake or miss something linked to the application, they are covered.  This can save you time and reduce the risk on the application, but the distribution and insurance remain your responsibility (see below)
2. Appointing a solicitor for full estate administration. If the estate is large, has many beneficiaries, and has other major assets like a business or property portfolio, it may make sense to appoint a solicitor who would then be responsible for everything and the associated liability.   Yes, it is more expensive, but if the estate pays for it and it removes your liability for errors and omissions, then it may be worth it.
   1. They often arrange probate insurance as part of the service, but you should check – and ensure you are covered against third-party claims (which a Solicitor is not insured for), such as a claim from a dependent, unknown creditor, a missing will or a missing or unknown beneficiary. If you do appoint a solicitor, not all are specialists in probate, so make sure to check they have a designated team and a clear service proposition before you appoint them.

Keep in mind:

If you haven’t appointed a solicitor to distribute the estate, it is your responsibility, not the solicitor's, and you can still make mistakes that you would be liable for.  If you are concerned about this, paying for full estate administration may be the way to go.

Whether you handle the estate yourself or appoint a solicitor, the third-party risk remains: claims resulting from a missing beneficiary, a missing will, an unknown creditor, or a claim under the Inheritance Act are your liability.  A solicitor's professional indemnity won’t cover them either, so make sure you understand your risks.

If there is a Will, read: What Insurance Should I Consider For a Testate Estate?

If there isn’t a Will, read: What Insurance Should I Consider For an Intestate Estate?

The cost of administering an estate is paid by the estate, not by you personally.

Anything you reasonably spend to administer the estate and protect it from risk is an allowable expense (provided it was reasonable and linked to the estate), such as property maintenance, insurance, estate agent fees, valuations, search fees, professional advice, etc. These come out of the estate's funds before anything is shared among the beneficiaries.

If the estate doesn’t have the funds and you are required to pay for something, you can list this as a liability and reclaim it from the estate prior to distribution.

Don’t be tempted to skip costs that could reduce or protect your liability, like specialist probate insurance. Doing so could jeopardise your own financial future should there be a claim either before or after the estate's distribution.