Consultation On The Mandating Of Online Probate Applications

The Ministry of Justice (MoJ) has released details of a consultation, aimed at specialist practitioners who submit probate applications, that proposes mandating of online applications by solicitor and other practitioner applications for grants of probate or letters of administration.

Until 2017 applications for probate could only be made using traditional paper-based systems, however, the online probate service forms was launched following a reform programme. The reform represented a £1bn investment into the modernisation of courts and tribunals.

In April 2020, as a measure to assist professionals during the pandemic, the President of the Family Division issued Practice Guidance1 enabling statements of truth (which can be
submitted electronically) to be used as an alternative to affidavits.

As the measure proved popular, consideration is being taken to making the changes permanent, via an amendment to the non-contentious probate rules.

Practitioners that have a MyHMCTS account, as well as a Payment By Account system set up, can create cases on the system, allowing the details to be uploaded immediately. Scans of relevant documents may be submitted and the practitioner can monitor the progress of each application on the dashboard, whilst receiving notifications when any action has been taken.

The government and HMCTS are proposing changing the non-contentious probate rules to make it mandatory for professional users to use the online process.

The MoJ has stated:

“There are a range of factors which have influenced this policy and operational objective. The advantages to both practitioners and HMCTS are set out below, and the Government believe these make compelling reasons. Perhaps the biggest factor though is that it is clear that the service has to modernise.

“Mandating the process will accelerate it and encourage users to adapt and take the necessary steps for the transition while helping to achieve the savings which HMCTS needs to deliver in fulfilling the requirements of the investment in the HMCTS reform programme.

“Court and tribunal services are increasingly making this transition – there are similar moves to mandate professional user applications for the Asylum and Immigration chamber of the Tribunals Service.

“There are a small number of probate processes which are not being mandated – details of these exceptions (and the reasons for not including them at this stage) are set out in paragraph 29.”

The consultation outlines a number of questions regarding the mandating of professional user applications, as well as outline the advantages of the online process, that include:

  • Cost and time savings
  • Secure and immediate means of recording receipt
  • Applications can be tracked and monitored
  • Errors are less likely, however changes can be made before the final version is submitted.

As mentioned above, there will be exceptions from the mandating of professional applications, these include:

“a) Where there are multiple applicants entitled under intestacy- the system is being developed, but at present the limit is on applications for grants of letters of administration to the spouse, civil partner or a single child. This is a small minority of applications.

b) Rule 31 – Grants to Attorneys, only where the attorney (representative for a deceased person who when alive was subject to a power of attorney order) is not an existing probate professional able to use the online service.

c) Rule 36 – Trust Corporation applications – these must be made by officers of the Trust Corporation, but work is advanced on these applications moving online too.

d) Rule 39 – Resealing under Colonial Probates Acts – these applications continue to require an affidavit, rather than a statement of truth, and thus need to continue to be paper-based and posted to the Probate Service.”

Speaking to Today’s Wills and Probate, Ian Bond, chair of The Law Society Wills and Equity Committee, told us:

“I think this is a positive step to move the application process online for the majority of applications. If resources and implemented correctly it will provide an efficient and effective service for professional users. The Law Society will be responding on behalf of the profession and ensuring that the concerns about any changes are reflected. Practitioners will want to have the assurance that the online systems are working and tested before mandating its use; that service levels will not decline; and, that these changes won’t lead to (excessive) changes to fees.”

Owen Byrne, Legal Director at BDB Pitmans told Today’s Wills and Probate:

“We broadly welcome the online submission of grant applications. Our colleagues dealing with properties are well used to submission of applications electronically via the Land Registry and a similar system seems appropriate for grant applications. An online portal allowing us track progress would be particularly welcome:  in cases where HMRC says it will send an IHT421 (the IHT probate summary) direct to the probate Registry, long telephone queues trying to work out whether a delay is with HMRC receipting the IHT account or at the probate registry could be avoided.  Practitioners would all welcome a slicker system and crucial to that is the interaction between HMRC and the Probate Registry.”

The full consultation details can be found here and closes on the 10 September 2020.

A summary of the responses will be available by the 28 September 2020 on the gov.uk website.

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