In this overview, James Mabey, partner at Winckworth Sherwood, highlights the causes of delays in obtaining probate and impact this can have on families.
In recent years following the pandemic, the average length of time to obtain a Grant of Probate has risen significantly. Probate has been known to take up to 16 weeks following submission of an application, with delays as long as 24 weeks in complex estates, or estates where an individual other than a named executor is proving the Will.
Effects of the delays
Delays in obtaining probate can result in a plethora of difficulties for grieving families at an already stressful time, who, in many cases, will not be able to access the bank accounts and other assets of the deceased until they receive the Grant of Probate. Financial hardship is therefore a real concern for many.
Additionally, the delays can impact on the value of estate assets once they are sold, particularly in recent years where markets have been particularly volatile. Where property is due to be sold, completion of the sale of property cannot take place until probate has been obtained.
Where inheritance tax is payable, some or all of this frequently needs to be paid by the end of the sixth month following the death (depending on what assets are in the estate), to avoid accruing interest and penalties. Banks can settle the tax due directly with HM Revenue & Customs before probate, but issues arise where the estate comprises predominately of illiquid assets needing probate for asset redemption. These delays can invariably result in additional interest accruing, which then depletes the assets available for beneficiaries.
Causes of the delays
An inquiry into the Probate Registry led by the Justice Committee is currently ongoing. The inquiry has brought to light a myriad of issues including deficiencies in staff training and teething issues with the new online probate service, which has been prone to displaying inaccuracies.
The online service was only one aspect of The HM Courts and Tribunals Service (“HMCTS”) Reform Programme; however, its implementation has seemed to coincide with the decline of what was until recently considered a highly effective system. Other aspects of the Reform Programme included the centralisation of the probate service and the closing down of probate registries, resulting in the redeployment of trained probate staff to other areas of the courts and tribunals system.
The loss of experienced staff well-versed in the nuances of probate law has been a critical factor in the delays, with the number of full time Registrars in England & Wales reducing from thirty to three following the reforms. This has left inexperienced staff who are simply not yet equipped to deal with issues which may arise and has resulted in some applications being incorrectly categorised as complex estates.
Going forward
Recent statistics suggest that waiting times are beginning to come down slightly. However the Probate Registry has now implemented reduced hours for its telephone services to manage the backlog of applications, making it increasingly challenging to contact the Registry for updates.
The Society of Trust and Estate Practitioners (STEP) have made a number of suggestions to HMCTS in order to reduce backlogs, including the outsourcing of complex cases to a limited number of experienced law firms; arranging for private practice probate practitioners to be seconded to the Probate Registry for a fixed period; and for Registry staff to be seconded to law firms to gain experience.
As the inquiry progresses, we expect that the forthcoming report from the Justice Committee will likely welcome the recommendations put forth by STEP.
