May 2024
In the time after someone dies, those closest to them will usually need to shoulder the responsibility of administering their estate. Depending on the financial circumstances of the person who has died, this may be a fairly straightforward task, or it could be very complicated.
An estate is a collective term for any money, property, possessions and other assets that an individual leaves behind when they die. This can include business interests, investments and digital assets. When you take on the task of administering an estate, you will need to assess and value all these assets, pay outstanding bills or debts, close down accounts and distribute any remaining assets to beneficiaries, as per the Will or the intestacy rules.
However close you were to the person who has died, you will not automatically have the right to take on this task. You will only be able to act as a personal representative if either:
- You have been named as an executor in a valid Will left by the person who has died.
- There is no valid Will and you have successfully applied to be appointed as the administrator for the estate.
Both types of personal representative take on much the same responsibilities. Crucially, both roles also take on much the same legal liability.
What does it mean to take on legal liability for an estate?
As soon as you take on the responsibility of winding up an estate, you can be held liable for anything that might go wrong. This can include both deliberate breaches of duty and accidental ones.
If someone else connected to the estate – such as a beneficiary or a creditor – believes that you have behaved in a way that was against the interests of the estate, they would be within their rights to take legal action. In situations like these, you could be ordered by a court to pay damages for any losses that have been incurred.
Creditors could also take legal action against a personal representative if they have failed to pay debts incurred by the estate. This can also be the case if the estate is insolvent; creditors could take legal action if they believe personal representatives have not followed the subscribed order for paying debts.
How can you protect yourself from this liability?
One of the key ways in which you are likely to find yourself liable is if a mistake has been made during the process of administering the estate. It is easy for things to be overlooked if you do not have experience in this area, especially in more complex estates.
The best way to protect yourself from any possible liability is to make sure you have sought specialist legal advice. An experienced probate solicitor will be able to help you assess the situation and ensure nothing is missed. They will also be able to pinpoint any areas where you may need to take extra care in order to protect your own finances.
An experienced solicitor will advise you about any extra steps you may be able to take to protect your liability. This can include publishing details of the estate in the London Gazette and any relevant local newspapers in order to protect against the possibility of a creditor coming to light after assets have been distributed to beneficiaries. In certain situations – such as after a presumption of death – a solicitor may advise taking out specialist insurance.
If you are involved in a dispute around an estate, it will be particularly important to seek legal advice as early as possible. These kinds of situations could be more likely to lead to claims and legal action. A specialist solicitor will help to guard against this.
Can a Will ever absolve personal representatives of this liability?
If you are in the process of making a Will, you might want to know whether it’s possible to do so in a way that would protect your personal representatives. Though it isn’t possible to completely take away liability, your solicitor may be able to include a clause to protect personal representatives from certain types of claims.
Whether you’re writing a Will yourself or whether you’re taking on the task of managing an estate, we’re always here to help.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:
- Trusts and Estate Planning
- Wills
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
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