What is Probate Negligence?
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’ and probate negligence occurs when a mistake is made in this process, such as a missed deadline.
If the deceased made a will, then the personal representative will be the executor(s) named in the will. They receive a ‘grant of probate’.
If the deceased did not leave a will, then the personal representative is known as an administrator and they will receive ‘letters of administration’.
Once the grant of probate or letters of administration have been obtained then the personal representative(s) can begin to administer the estate and ‘wind up’ the deceased’s financial affairs.
The area of law that involves the process of applying for the grant/letters and the subsequent administration of the estate is generally referred to as ‘probate’.
The role of the probate solicitor
Probate law can be complex and while many 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 are likely to 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 be able to 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 be able to advise the personal representatives.
Probate law imposes time limits that must be complied with and specifies procedures that must be followed. If time limits are not obeyed or procedures followed then financial losses can arise. If these losses are caused by a probate solicitor then that solicitor may become legally liable and subject to a probate negligence claim.
Common negligence claims involve:
- Missed deadlines
- Inexcusable delay
- Incorrect legal/tax advice
Making a probate negligence claim
If an executor, administrator or a beneficiary loses out as a direct result of an error or mistake by a probate solicitor then they may wish to consider making a probate negligence claim for compensation.
It is always sensible to see whether the matter can be resolved informally, perhaps through the solicitor’s complaints procedure.
If a solution cannot be reached then the next step is to consider what the financial loss is. 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 a negligence claim can be made to recover legal costs in addition to compensation.
Claims should be made within 6 years of the negligent act or omission, or within 3 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 lawyers who specialise in both professional negligence law and probate law. We are therefore able to bring these two distinct areas of expertise together to provide clients with a first class specialist service. In addition to dealing with probate negligence we also have expereince of dealing specifically with executor negligence.
We offer a range of funding options for claims, including No Win No Fee.
We also operate a free legal helpline which you can call for free initial advice on a probate negligence claim.