A quick guide to probate negligence
If you have been the victim of probate negligence, then contact our specialist solicitors for a free consultation. Call 0808 139 1591 or email [email protected]
Applying for probate
When someone passes away, it will usually be necessary for a person known as a personal representative to apply for the legal right to deal with their estate (comprising their property, their money and their possessions). This procedure is known as applying for probate.
If the deceased made a will, then the personal representative will be the executor(s) named in the will. They apply for a ‘Grant of Probate’.
If the deceased did not leave a will, then the personal representative is known as an administrator, and they apply for ‘Letters of Administration’.
Once the Grant of Probate or Letters of Administration has been obtained, then the personal representative(s) can begin to administer the estate and ‘wind up’ the deceased’s financial affairs.
Probate negligence occurs when a mistake is made in this process, resulting in the estate or a beneficiary suffering financial loss.
The role of the probate solicitor
Probate law can be complex, and while some executors and administrators deal with the process themselves, it is customary for them to appoint solicitors to act on their behalf where the value of the estate is material.
Probate solicitors need to keep up to date with the law, both in relation to how an estate is administered and in relation to how tax regulations apply.
It is the role of a probate solicitor to advise the personal representatives of their legal obligations and duties in connection with their administration of the estate. Executors and administrators can incur personal liability if they act inappropriately, and an experienced probate solicitor will guide their client so that they do not become personally liable.
If a dispute arises, such as a challenge to the validity of a will or a claim under the Inheritance (Provision for Family and Dependants) Act 1975, then the probate solicitor will need to advise the personal representatives on the response to the claim.
Probate negligence
Probate law imposes strict time limits and specifies procedures that must be followed. If time limits are not obeyed or procedures followed then financial loss can follow. If these losses are caused by a failure on the part of a probate solicitor, then that solicitor may become legally liable and subject to a probate negligence claim.
Common probate negligence claims involve:
- Missed deadlines
- Inexcusable delay
- Incorrect legal/tax advice
Making a compensation claim
If someone loses out because of an error or mistake by a probate solicitor, then they may wish to consider making a probate negligence claim to recover compensation.
In these cases, it is always sensible to see whether the matter can be resolved informally, perhaps through the solicitor’s complaints procedure. But if a solution cannot be reached, then legal action is likely to be required.
When considering legal action, the first issue to examine is the extent of the financial loss. If the loss is under £10,000, then the matter will probably be suitable for the small claims court procedure. The key feature of the small claims court is that legal costs are rarely awarded to the winner. This usually means that it is not commercially viable to appoint a firm of solicitors like ourselves to handle the claim.
Where the financial loss exceeds £10,000, then you may wish to appoint a specialist solicitor to pursue the legal action. Our solicitors have a 5 star rating on the independent legal review website ReviewSolicitors* and specialise in dealing with probate negligence claims.
Under the Limitation Act, claims should be made within six years of the negligent act or omission, or within three years of the date the claimant first became aware that negligence had occurred.
How we can help in cases of probate negligence
We have teams of SRA regulated solicitors who specialise in both professional negligence law and probate law. We bring these two distinct areas of expertise together to provide clients with a first class specialist service.
In addition to handling probate negligence claims, we also have experience of dealing specifically with executor negligence.
We offer a range of funding options for these claims, including No Win No Fee.
We also operate a free legal helpline which you can call for free case assessment of your probate negligence claim.