KSL ATP Probate common mistakes
KSL ATP Probate · Understand the traps and how to avoid them.
Treating a will as valid because it looks complete and signed, without checking that the attestation clause reflects proper execution (testator signed or acknowledged in the presence of two witnesses present at the same time, witnesses then attested).
Candidates read the content of the will for dispositions and skim the testimonium and attestation clause, assuming signature equals validity, because execution formalities feel like a formality rather than a substantive requirement.
What to do instead
Adopt a fixed execution checklist applied to every will: presence of testator's signature or acknowledgement, both witnesses present simultaneously, witnesses' signatures, and whether the attestation clause is present, absent or defective. If the clause is defective, state that evidence in solemn form or an affidavit of due execution may be required rather than simply asserting validity.
Applying intestacy rules by naming the survivors who 'should' inherit (e.g. 'the wife and children share it') instead of working through the statutory order of entitlement and the prescribed shares step by step, including the position of the surviving spouse, issue, parents, siblings and the partial intestacy residue.
Candidates rely on general impressions of who 'normally' inherits and skip the mechanical distribution schedule, especially where a spouse and issue both survive or where the estate is partly testate.
What to do instead
For every intestacy question, draw the family tree, then apply the statutory order and shares sequentially, showing the spouse's entitlement, the issue's entitlement, and any hotchpot or statutory legacy calculation explicitly. State the result for each asset or the residue separately when the intestacy is partial.
Confusing the probate court's jurisdiction with the court's power to decide disputed beneficial ownership, and filing or advising on the wrong track (e.g. seeking a grant where a construction or rectification claim is needed, or vice versa).
The domains overlap and candidates conflate 'probate business' (grants, proving wills) with contentious probate and administration actions, so they mislabel the procedural route.
What to do instead
Before answering, classify the issue: non-contentious grant application, construction/rectification, revocation, or administration claim. Then state the correct procedure and court for that classification, and note explicitly that a grant is not a determination of title.
Selecting the wrong type of grant or the wrong applicant, e.g. applying for letters of administration with will annexed where an executor exists but has not renounced, or naming a beneficiary as administrator without clearing the priority order.
Candidates memorise grant names without linking them to the factual trigger (will with executor, will without executor, no will, minority, renunciation, death of sole executor).
What to do instead
Use a decision table: is there a will? Is there a named executor able and willing? If yes, probate; if no executor or renounced, administration with will annexed; if no will, administration. Then apply the statutory priority of applicants and record any renunciation, power reserved or citation.
Describing an administrator's or executor's powers and duties generically without distinguishing the different standards and liabilities (executor's year, duty to collect and distribute, power of appropriation, assent, sale, investment) or the personal liability for deviating from them.
Candidates learn the list of powers but not the conditions, consents and timing that govern their exercise, so answers are correct in outline but wrong in application.
What to do instead
For each power or duty, state the source, any required consent or notice, the timing constraint, and the consequence of breach. Practise applying each to a short fact pattern so the conditions, not just the name, are recalled.
Citing procedural rules from memory without the correct form, time limit or affidavit requirement, or inventing a form number or rule reference that does not exist.
Candidates try to reproduce rule numbers and form references under time pressure and guess rather than reason from the purpose of the step.
What to do instead
Learn the small set of core steps (citation, renunciation, oath, grant, accounts) with their purpose and required content rather than isolated numbers. Where a specific number is uncertain, describe the step and its requirements accurately and flag the reference as needing verification instead of fabricating it.
Treating the personal representative as if they were a trustee from the moment of death, or vice versa, and misstating when the office changes and what duties attach at each stage.
The executor/administrator and trustee roles overlap in practice, and candidates blur the transition, so they apply trustee investment or fiduciary standards to the administration period or vice versa.
What to do instead
Map the timeline: death, grant, administration of assets, assent, then trusteeship of residue. For each stage, state who holds the assets, in what capacity, and which duties and powers apply. Use a two-column comparison of executor versus trustee duties.
Giving estate-planning or family-provision advice without identifying the claimant class, the statutory factors the court weighs, and the time limit for a claim, or without noting the effect of the will and intestacy on the available provision.
Candidates focus on the desired outcome for the client and skip the structured legal test and procedural limits that determine whether a claim can succeed.
What to do instead
For every family provision issue, state the eligible applicant category, the statutory factors to be weighed, the time limit and the court's powers (lump sum, periodical payments, transfer, settlement, variation). Then apply them to the facts rather than asserting a fair result.
Calculating inheritance tax or estate accounts using the wrong base: omitting lifetime transfers, failing to distinguish exempt and chargeable transfers, or applying the wrong rate or nil-rate band treatment to the death estate.
Candidates do the arithmetic they remember (estate value times rate) without reconstructing the cumulative chargeable transfer position and the available reliefs and exemptions.
What to do instead
Build every tax computation in a fixed order: lifetime chargeable transfers, exemptions and reliefs, cumulative total, nil-rate band available, then the death estate. Show each line and label the rate applied. Reconcile the total to the estate accounts.
Advising on a probate matter without addressing conflicts of interest, client capacity or identity, confidentiality between multiple family clients, or the limits of the retainer, and without documenting the client-care steps.
Candidates treat ethics as a separate topic and do not integrate it into the practical scenario, so the conduct issues in the facts go unaddressed.
What to do instead
Run a standing conduct check on every scenario: who is the client, is there a conflict between beneficiaries and the personal representative, is capacity in doubt, what is the scope of the retainer, and what must be recorded. State the ethical issue and the practical step (declining, separate advice, written confirmation) explicitly in the answer.