Administering an estate can involve substantial assets, tax liabilities, property, investments and competing interests between beneficiaries. Executors and beneficiaries may rely on a probate solicitor to deal with these matters accurately and within the scope of their instructions.
Serious mistakes can reduce the value of an estate, delay distributions or result in money being paid to the wrong person.
However, delay or dissatisfaction does not automatically amount to negligence. The key question is whether the solicitor failed to exercise reasonable skill and care and caused measurable financial loss.
Key Takeaways
- Probate solicitor negligence can arise from serious errors involving estate assets, tax, distributions or legal deadlines.
- Poor service and delay are not automatically the same as professional negligence.
- A successful claim usually requires evidence of duty, breach, causation and financial loss.
- Claims involving losses to an estate will usually be brought by its personal representatives, while beneficiaries may have a different legal position.
- Responsibility can be complicated where the alleged mistake also involves an executor, accountant or another professional adviser.
What Is Probate Solicitor Negligence?
Probate solicitor negligence occurs where a solicitor dealing with an estate falls below the standard expected of a reasonably competent practitioner and causes financial loss.
The solicitor's responsibilities depend on their instructions. Some are retained to provide limited advice to executors, while others manage most of the estate administration process.
The engagement letter and correspondence can therefore be important in establishing what the solicitor agreed to do.
A negligence claim generally involves four questions:
Duty: What responsibility did the solicitor owe?
Breach: Did the solicitor fail to carry out that work with reasonable skill and care?
Causation: Would the financial loss have been avoided if the solicitor had acted competently?
Loss: What measurable financial damage resulted?
A solicitor making an error does not automatically mean compensation is available. The mistake must have caused an actionable loss.
Probate claims which arise from the professional negligence of legal advisers are often complicated and time-critical. Identifying the nature and extent of possible damage to the Estate and/or to beneficiaries as a result of negligent advice requires specialist input at the earliest opportunity - the preservation and gathering of evidence will be crucial. Tony Hill - Head of Professional Negligence & Commercial Litigation
What Probate Errors Can Lead to a Negligence Claim?
Potential examples include:
- failing to identify or properly deal with estate assets;
- distributing estate funds to the wrong person;
- distributing assets prematurely before liabilities have been addressed;
- overlooking important information about a beneficiary or creditor;
- providing negligent tax advice or calculations;
- failing to deal properly with property belonging to the estate;
- missing a deadline that causes the estate to lose a valuable right;
- failing to pursue money or assets due to the estate;
- providing incorrect advice about the terms or effect of a Will; or
- failing to warn executors about significant legal risks.
These examples do not automatically establish negligence.
The solicitor may have been acting on incomplete information, responsibility may have belonged to the executor, or the same financial outcome may have occurred even with competent advice.
The circumstances of the individual estate are therefore important.
Delay Versus Negligence
Probate can take time even when handled properly. Properties may need to be sold, tax issues resolved, assets traced, creditors dealt with and disagreements between beneficiaries addressed.
A lengthy administration does not necessarily mean the solicitor has been negligent.
The concern becomes more significant where an unreasonable delay causes financial loss.
For example, an avoidable delay in dealing with an estate investment might matter if its value subsequently falls and competent administration would probably have resulted in an earlier sale.
The question is whether the delay was unreasonable and whether it actually caused the loss being claimed.
Negligent Distribution of Estate Assets
A solicitor involved in administering an estate may need to establish who is entitled to receive assets, consider outstanding liabilities and advise personal representatives before distributions are made.
If substantial funds are paid to the wrong person, recovering that money may prove difficult.
Responsibility will depend on who made the decision, what advice was provided and whether checking entitlement fell within the solicitor's role.
For example, an executor who ignores clear legal advice may be in a different position from one who follows a solicitor's incorrect recommendation that a distribution is safe.
This distinction can become particularly important where substantial inheritances or valuable property are involved.
Tax and Estate Administration Errors
Estates can involve inheritance tax, income tax, capital gains tax and other reporting requirements.
A probate solicitor is not necessarily responsible for every tax matter, particularly where specialist accountants or tax advisers are also instructed. The scope of each professional's work matters.
A claim may arise where a solicitor gives negligent tax advice within their area of responsibility and the estate incurs an avoidable liability, penalty, interest charge or other financial loss.
However, it is important to distinguish between tax that was always legally due and additional costs caused by negligence.
For example, if an estate was required to pay £200,000 in tax regardless of the solicitor's actions, that amount would not ordinarily become a negligence loss simply because the solicitor made an unrelated mistake.
The relevant loss may instead be additional tax, interest or penalties that competent advice would have avoided.
Who Can Bring a Probate Negligence Claim?
This is an important distinction in probate negligence cases.
Where solicitors are instructed by executors to administer an estate, the clients will commonly be the personal representatives acting in their capacity as administrators of the estate.
If the solicitor's negligence causes loss to the estate, the claim will usually be brought by the personal representatives on its behalf.
Beneficiaries may also suffer financially because their inheritance has been reduced. However, this does not automatically give each beneficiary a direct negligence claim against the solicitor.
Whether a solicitor owes a separate duty to a particular beneficiary depends on the circumstances.
For example, an estate may have lost an asset because of negligent administration. Although several beneficiaries ultimately receive less money, the underlying claim may belong to the personal representatives rather than those beneficiaries individually.
Establishing who suffered the legal loss and who is entitled to bring proceedings is therefore an essential early step. GOV.UK provides further guidance on the responsibilities of personal representatives when dealing with an estate.
How Are Probate Negligence Losses Calculated?
Compensation generally depends on the financial position that would probably have existed if the solicitor had acted competently.
Potential losses may include:
- the value of an estate asset that should have been recovered;
- an avoidable reduction in the value of estate property;
- money incorrectly distributed and no longer recoverable;
- additional tax, penalties or interest caused by negligent advice;
- reasonable costs incurred to correct the consequences of the mistake; or
- the loss of an underlying legal claim that the estate should have pursued.
Not every financial consequence will necessarily be recoverable.
Complex cases may require accounting, tax or valuation evidence. The involvement of executors, accountants or financial advisers may also affect how responsibility is assessed.
Proving What Would Have Happened Without the Error
Proving that a solicitor made a mistake is only part of a professional negligence claim.
You must also establish what would probably have happened had competent advice been given.
Suppose a solicitor failed to advise an executor to sell an investment that subsequently fell significantly in value.
The fall in value alone would not establish a claim. It may also be necessary to show that competent advice would have been different and that the executor would probably have followed it.
Similarly, if a solicitor failed to pursue a legal claim on behalf of the estate, the value of the negligence claim may depend on the prospects and value of that lost opportunity.
This is why the evidence surrounding decisions made during administration can be just as important as the original mistake.
What Evidence Is Needed for a Probate Negligence Claim?
Useful documents may include:
- the Will and any codicils;
- the solicitor's engagement letter;
- the probate and estate administration file;
- correspondence between solicitors, executors and beneficiaries;
- estate accounts;
- bank and investment records;
- property valuations;
- tax returns and HMRC correspondence;
- records of distributions;
- advice received from accountants or other professionals; and
- evidence showing the financial loss.
Preserving these documents early is important, particularly where the estate has been administered over several years.
Have mistakes in probate or estate administration caused financial loss?
Whether a probate solicitor has mishandled estate assets,
advised incorrectly on distributions or made a costly
administration error, our professional negligence team can
review the circumstances and assess whether there may
be grounds for a compensation claim.
Complaining About a Probate Solicitor Versus Claiming Compensation
A service complaint and a professional negligence claim serve different purposes.
Where the concern relates mainly to communication, delays or poor service, the solicitor's internal complaints procedure may be an appropriate starting point.
However, where a professional mistake has caused substantial financial loss, a separate civil negligence claim may need to be considered.
Making a complaint does not automatically stop a legal limitation period from running.
How Long Do You Have to Make a Probate Negligence Claim?
A six-year limitation period will often be relevant, although the precise starting point depends on the legal basis of the claim and the circumstances.
Where a claim is brought in negligence and the relevant facts were not known earlier, an alternative period of three years from the date of knowledge may apply, if that gives a later deadline.
This is generally subject to a 15-year longstop from the negligent act or omission.
These date-of-knowledge provisions do not extend the limitation period for claims brought in contract alone.
Probate errors can remain undiscovered for years, so obtaining legal advice promptly is important once a potentially significant mistake comes to light.
Making a Claim Against a Probate Solicitor
A specialist review should establish what the solicitor was instructed to do, what allegedly went wrong and what financial difference the mistake made.
Professional negligence claims generally follow the Professional Negligence Pre-Action Protocol before court proceedings are started.
The claim should explain the alleged breach of duty, how it caused the loss and the compensation being sought, supported by relevant evidence.
Expert evidence may be required where liability or the value of the claim is disputed.
Many cases can be resolved through negotiation or mediation, although court proceedings may sometimes be necessary.
If you believe mistakes in the administration of an estate have caused significant financial loss, Wealth Recovery Solicitors can review the circumstances and explain whether a professional negligence claim may be available.
FAQs
Is a slow probate solicitor automatically negligent?
No. Estate administration can legitimately take time. The question is whether any unreasonable delay fell below the standard expected of a competent solicitor and caused financial loss.
Can a beneficiary sue the estate's solicitor?
Potentially, but not automatically. The solicitor may have been retained by the personal representatives rather than individual beneficiaries. Whether a separate duty was owed to a beneficiary requires careful legal assessment.
Can I claim for an inheritance reduced by a solicitor's mistake?
Potentially. However, it is important to establish who suffered the legal loss and whether the claim belongs to the estate or, in the particular circumstances, an individual beneficiary.
What if the executor also made mistakes?
An executor's conduct may affect whether the solicitor's negligence caused the loss. Where an executor brings a claim, contributory negligence may also be relevant. In other circumstances, a solicitor may seek a contribution from the executor. Responsibility depends on the facts.
Can I claim simply because I disagree with the solicitor's advice?
No. Competent professionals can reasonably reach different conclusions. A successful claim requires evidence that the solicitor's conduct fell below the appropriate professional standard and caused actionable financial loss.