When someone dies, their estate (property, money and possessions) usually needs to be administered through a legal process known as probate. In England and Wales, probate is the procedure by which the deceased’s will is proven in court and the executors are given authority to distribute the estate. If there is no will, a similar process applies through “letters of administration”.

Although many people instruct solicitors to deal with probate, individuals can apply directly through the courts. This is often referred to as “DIY probate”. While it may seem like a way to save costs, there are several risks that anyone considering this route should be aware of.

What is Probate?

Probate is the official confirmation that a will is valid and that the named executors can deal with the estate. Without a grant of probate (or letters of administration if there is no will), banks, building societies and other institutions will not usually release funds or transfer property.

The law governing probate primarily comes from the Non-Contentious Probate Rules 1987 and the Administration of Estates Act 1925. Applications are made to the HMCTS Probate Service (online in most cases, or by post where required). If the estate is worth over £5,000, the HMCTS application fee is £300; there’s no fee at £5,000 or less.

Why Some People Attempt DIY Probate

There are two main reasons people try to handle probate themselves:

• Cost – those attempting DIY probate seek to avoid paying professional fees.
• Simplicity – In straightforward estates, some executors believe they can manage the process without professional support.

However, even apparently simple estates can have hidden complications.

The Risks of DIY Probate

1. Misunderstanding Inheritance Tax

Executors are personally liable for ensuring inheritance tax (IHT) is calculated and paid correctly. Mistakes can result in penalties and interest being charged by HMRC. Complex rules apply, including allowances, reliefs, and exemptions.

2. Misinterpreting the Will

Legal terminology in wills is not always straightforward. Executors may misunderstand the provisions, leading to incorrect distribution of assets or disputes among beneficiaries.

3. Failing to Identify All Assets and Debts

Executors must ensure that all assets are collected, and all debts are paid before distributing the estate. Overlooking debts or paying beneficiaries too early can make an executor personally liable.

4. Problems with Property

Where the estate includes property, there can be complications such as mortgages, jointly owned property, or an unclear title. These issues often require legal expertise to resolve.

5. Disputes Between Beneficiaries

DIY probate can increase the risk of disputes if beneficiaries feel the estate is being mishandled. Executors can be taken to court for breach of duty.

6. Executor’s Personal Liability

Executors carry significant personal responsibilities. Errors in tax, distribution or administration can result in financial liability, even if the mistakes were unintentional.

When DIY Probate May Be Less Risky

DIY probate might be manageable where:

• The estate is small, and all cash balances are under each institution’s probate threshold (check with each bank/building society)
• There is no property.
• There are a few beneficiaries, all of whom agree on the process.
• There are no tax liabilities or foreign assets.

Even in these cases, care should be taken to follow official guidance.

Balancing Cost and Risk

While solicitors’ fees can seem significant, they can save time, reduce stress and protect executors from costly mistakes. A solicitor can also deal with HMRC and the Probate Registry on your behalf and ensure that the estate is administered in accordance with the law.

Final Thoughts

Probate is a necessary legal process that should not be taken lightly. DIY probate is possible, but the risks can outweigh the savings if the estate is anything other than very simple. Executors should think carefully about whether they have the time, knowledge, and confidence to handle the process themselves.

If you are facing probate, it is always advisable to seek independent legal advice to ensure that the estate is dealt with correctly and to protect yourself from personal liability.

The post DIY Probate in England – Understanding the Risks appeared first on SJP Law.

What is Freehold?

If you purchase a freehold property, you own both the building and the land it stands on outright. Your ownership is not limited by time, and you are responsible for the upkeep of the property and the land.

Freehold is generally considered the most straightforward form of ownership, as there is no landlord or ground rent to pay. Most houses in England are sold as freehold, although there are exceptions.

What is Leasehold?

A leasehold property means you own the right to live in the property for a fixed number of years, decades, or even centuries (leases are commonly granted for 99, 125, or 999 years). The land itself remains owned by the freeholder or landlord.

As a leaseholder, you may be required to pay:

• Ground rent (though reforms are phasing out new ground rents for most residential leases),
• Service charges and maintenance fees for shared spaces such as hallways, gardens, or lifts,
• Contributions to major works like roof repairs or external decoration.

Flats are almost always sold as leasehold because of the shared nature of the building. Some houses were historically sold as leasehold, but this practice has been widely criticised and since 2019 most new-build houses cannot legally be sold on a leasehold basis (with limited exceptions).

Key Differences Between Freehold and Leasehold

The distinction between freehold and leasehold can have long-term implications for property owners.

• Ownership: Freehold gives you permanent ownership of the land and property. Leasehold grants ownership for a fixed term only.
• Costs: Leaseholders may face ongoing costs such as ground rent, service charges, and fees for extending their lease. Freeholders are responsible for the entire cost of maintaining the property.
• Control: Freeholders have complete control over their property (subject to planning laws). Leaseholders may also require permission from the freeholder for alterations.
• Expiry: Leasehold ownership reduces in value as the lease term shortens. Extending a lease can be expensive, particularly if the remaining term is less than 80 years.

Recent Reforms

The law relating to leasehold is evolving. The Leasehold Reform (Ground Rent) Act 2022 abolished ground rent for most new residential long leases. Existing leaseholders may still have to pay ground rent unless they extend or vary their lease. The Leasehold and Freehold Reform Act 2024 (not yet fully in force) is expected to make it easier and cheaper to extend leases (standardising them to 990 years and abolishing marriage value) or buy the freehold, as well as increasing service charge transparency

Which is Better?

Buyers often prefer freehold because it avoids ongoing costs and restrictions. However, leasehold is common with flats and may be the only available option in some areas. The “better” choice depends on your circumstances, and, in the case of a lease, its terms and how long is left on it. Different rules apply in Scotland and Northern Ireland, where leasehold ownership is uncommon or has been abolished.

Final Thoughts

Whether you are considering a freehold or leasehold property, it is essential to understand the implications of each before committing to a purchase. A solicitor at SJP Law can explain your rights and responsibilities, help you review the terms of a lease, and advise on any risks.

The post Freehold vs Leasehold: Understanding the Difference appeared first on SJP Law.

What does legal expenses insurance cover?

Legal expenses insurance covers the cost of legal advice and the cost of taking action in certain situations. It allows the insured to raise or defend court proceedings in a legal action that might happen in the future.

In the case of after the event insurance, is allows the insured to raise or defend proceedings after a dispute or event has taken place.

How is legal expenses insurance purchased?

Legal expenses insurance can be purchased as a stand-alone policy or it may be included as a standard feature of another insurance policy, for example, motor or home insurance. It can also be purchased as an optional add-on to other types of insurance.

What types of legal expenses insurance are there?

There are two types of legal expenses insurance:

Before the event: this is an insurance policy that covers events that might happen in the future.

After the event: this is an insurance policy that covers legal action relating to an event that has already taken place. After the event insurance policies are usually stand-alone policies.

Who is legal expenses insurance for?

Legal expenses insurance can be beneficial for individuals, motorists, and business owners. Business owners may be more likely to face legal action than individuals, and legal expenses insurance can help them pursue legal cases without worrying about legal fees. 

The Legal Services Board has developed a strategy including an aim of most households having legal expenses insurance, allowing them wider access to justice.

Until this comes into being, check your motor or household insurance or any insurance benefits that come with your bank account to discover if you already have legal expenses insurance available to you.

When might legal expenses insurance be used?

Perhaps the best way to understand how legal expenses insurance is used is by looking at a couple of examples.

Employment Disputes

An employee faces unfair dismissal from their workplace and decides to pursue legal action against their employer. With a “before the event” legal expenses insurance policy attached to their home insurance, they can cover the costs of legal advice and court representation without worrying about out-of-pocket expenses.

Property Disputes

A homeowner discovers that a neighbour has built a fence encroaching on their property. They wish to resolve the matter legally but are concerned about the costs. Their “before the event” legal expenses insurance, included in their household insurance, covers the legal fees, enabling them to address the issue effectively.

Personal Injury Claim with After the Event Insurance

A motorist is injured in a car accident caused by another driver. They did not have legal expenses insurance at the time of the incident but need to take legal action to recover damages. They purchase an “after the event” insurance policy, which covers the legal costs of pursuing their personal injury claim, ensuring they are not financially burdened if the claim is unsuccessful.

Business Contract Disputes

A small business owner discovers that a supplier has breached their contract by delivering substandard goods. With a legal expenses insurance policy tailored for businesses, they can afford to initiate legal proceedings to recover their losses.

The post Legal Expenses Insurance – a definition appeared first on SJP Law.

Who is considered a carer?

NHS England defines a carer in the following way: “A carer is anyone, including children and adults, who looks after a family member, partner or friend who needs help because of their illness, frailty, disability, a mental health problem or an addiction and cannot cope without their support. The care they give is unpaid.” and that carers include “both adult and young carers.”

They also say: “Many carers don’t see themselves as carers and it takes them an average of two years to acknowledge their role as a carer.”

Of course, there is also the legal definition of a carer

What is the legal definition of a carer?

The UK government issued a series of factsheets in April 2016 relating to the Care Act 2014 which deals, in the main, with adult care. Factsheet 8 defines a carer as “someone who helps another person, usually a relative or friend, in their day-to-day life. This is not the same as someone who provides care professionally, or through a voluntary organisation.”

The important element of the definition is that the care is not delivered through employment or through being involved in a voluntary organisation. In other words, carers are unpaid for the care they provide.

It is also important to note that the Care Act 2014 provides for adults or children transitioning to adulthood. Care provisions in relation to children can be found in the Children and Families Act 2014

Are there any allowances carers can claim?

If you meet the definition of being a carer, you may be entitled to a benefit called Carer’s Allowance. This benefit currently amounts to £81.90 per week. Certain conditions apply before the benefit is paid. These conditions are:

• You look after someone for at least 35 hours a week.
• You don’t earn more than £151 per week (after deductions including tax, national insurance and certain expenses).
• The person you care for receives a disability benefit
• You’re aged 16 or over.
• You meet UK residence and presence conditions and UK immigration conditions

You can find out more information on the Carer’s Allowance Factsheet published by Care UK.

Are there any discounts available to carers?

When you are caring for someone, every penny needs to go further. That means if you have access to discounts, your money can stretch, allowing you to buy more for what you have available.

You can find out more about the wide range of discounts for carers through the Discounts for carers page on the Carers First website. Here you will find discounts that range from cash-back on shopping with high street retailers through to discounts on holiday and travel arrangements and much in between!

Where can I get more information and support?

NHS England has produced a most helpful page on its website containing a wide range of information and support for carers. Through this page, you will find information on:

• Help from social services and charities
• Care services, equipment and care homes
• Money, work and benefits
• Care after a hospital stay
• Support and benefits for carers
• Practical tips if you care for someone
• Caring for children and young people
• Making decisions for someone else

As you will appreciate from this list, carers are involved in every element of the lives of the people they care for. That is why it is important that carers themselves be supported whenever possible.

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