Specialist private client solicitor Emma Westsmith warns of continuing delays in the probate process. The Probate Registry has not improved their aimed-for period to deal with probate applications below 16 weeks.
Private client solicitor Emma Westsmith
In 2023 the Probate Registry doubled their aimed-for timescale for dealing with probate applications to 16 weeks. During the 16 week period they will not answer any questions about applications.
Timescales
When the Probate Registry was first centralised and digitised they hoped to be able to deal with applications in 4 weeks. Teething problems with the new system and then the pandemic were blamed for unprecedented delays. The aimed-for timescale was increased from 4 weeks to 8 weeks and then 16 weeks.
The Chair of the Justice Committee has just published a letter summarising the findings from an inquiry cut short by the announcement of the general election in July. In short, the letter confirms that prior to digitisation and centralisation the probate service worked and now it does not. The Chair says “the cause of the collapse of the Probate Registry was a failure to understand the magnitude of the centralisation and digitisation projects and a failure to appreciate the importance of an experienced and skilled workforce”. We are where we are and the letter suggests a number of ways the Probate Registry can improve especially focused on publishing more data to win back trust from consumers and those involved in the industry (lawyers, charities, local authorities etc).
What is probate
Probate is a term people use to describe the legal and administrative process of collecting in assets for a deceased person (dealing with an estate). For many estates, a certificate called a grant of representation is needed to present to asset holders to release assets. There are many different types of grant of representation: grant of probate, grant of letters of administration, grant of letters of administration with will annexed etc. The Probate Registry deals with these applications. During the process the value of the estate is also reported for inheritance tax.
Things to watch out for
Delay receiving the grant can cause lots of problems:
Interest on unpaid inheritance tax: interest (since August at 7.75%) begins to run on unpaid inheritance tax 6 months after the end of the month of death. Some asset holders will not release assets until they have seen the grant so it is impossible to pay the inheritance tax on delivery of the application. Some asset holders say in their standard paperwork they will release funds direct to HM Revenue and Customs to pay inheritance tax early. Even if they don’t, ask them to make an exception.
Estate enquiries and potential claims: the date for delivery of enquiries from the Department of Work and Pensions and potential claims under the Inheritance Provision for Family And Dependants Act 1975 are set by the date the grant is issued. Delay with the grant means delay to the overall administration of the estate.
Disappointed beneficiaries: probate can be an incredibly complex and lengthy process with many different people involved. Administering an estate properly takes time and this should be explained to beneficiaries of the estate as early as possible in the process. Where delays are caused by third parties, beneficiaries need to be kept up to date so that they do not expect to receive their share one day only to find it doesn’t arrive for another few months.
Properties sitting empty: although executors may begin marketing a property immediately, it is unlikely they will be able to exchange contracts or legally complete a sale until the grant is issued. Chains of transactions regularly fall through because grants are delayed. Executors may struggle to fund the costs of running a property themselves with no access to cash in the estate and this may lead to deterioration of buildings, risk from squatters and/or theft of property and risks to ownership of the property itself if service charge and ground rent demands are not paid.
The 16 week timescale can start again: if you miss something in submitting your application or the Probate Registry wrongly identify a problem with your application, the application can be put to the bottom of the pile and the 16 week timescale can start again. The scary thing about this is that the Probate Registry will not take calls about the application until 16 weeks have elapsed so you may not find out there is a problem for 4 months. Applications should be checked fully before they are submitted. Take scans of any documents you send to the Probate Registry and send everything tracked or signed for so you know when it has been received.
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