Expert Comments On Probate Backlogs And Online Applications

The various trials regarding HM Courts and Tribunals Service (HMCTS) new online probate service for personal applicants throughout England and Wales last year have been very positive.

Throughout the second half of 2018, HMCTS trialled the online system, that enables the bereaved to apply for a grant of probate, make the statement of truth online and pay for probate using the online service. 

During the trial, over 39,000 users tested the various facets of the online service to overwhelming success. Online divorce applications have cut errors from 40% to 1% and it is hoped that the same outcome will be found with probate issues.

The online service proved fruitful after 93% of users who applied for online probate were ‘satisfied’ with the service they received. 

The trial for personal applicants had been running throughout Oxford Probate Registry with the professional pilot scheme opening in Birmingham District Probate Registry.

Now, the professional trial is being rolled out further afield with more professional firms being tasked with using online probate applications.

Rebecca Harbron Gray, Partner and Head of Wills, Trusts and Probate at Gordon Brown Law Firm LLP (GBLF), has taken the time to discuss joining the online pilot scheme, the impact of probate delays and the ways the system will improve the process for all concerned.

How did you become accepted onto the pilot for online probate applications?

We, as a firm, are always on the ‘look out’ for ways we can improve our client’s journey and when I saw via the Solicitors for the Elderly and STEP professional Forums that HMCTS were looking for firms to trial this then I really wanted to be part of the pilot.

 Was becoming a panellist a natural fit for your firm?

It really was a natural fit for our us. In recent years we have moved almost all the departments in the firm over to work in a paperless and digital way and we like to continue improvements when given the chance.

We enjoy working in the best way to accommodate every client whether they like receiving post, prefer email or like to speak to us on the phone and we use combinations of all these to best suit the client.

Some of the work we do comes from local clients and others from further afield so digitally working is essential for swift service and something we are well accustomed to.

What impact has the probate delays had on you and your clients?

The difficulties clients have had are wide ranging:

  • Those caught in a house sale struggle to move the conveyancing forward and risk losing their buyers as they cannot comply with requests for completion.
  • Estates are being prolonged due to the Probate delays, taking longer generally to release funds which can leave grieving spouses and civil partners in financial difficulty if the deceased held most of the assets in the relationship. This is affecting the families cashflow directly.
  • Frustrations that the grieving process feels longer because the time for closure is being elongated
  • In estates where there is a contentious element the delays are allowing warring parties more time (often to the determent of estates) to place Caveats and take advantage of the delay.

A year ago, we could have the Grant back in 10 working days and now we are stuck with anywhere from 9 – 11 weeks.

I have not had an application come back quicker than this recently.

As a firm with a large property team, we see the problems worst affected are in house sales. Previously, Probate Registries had the ability to prioritise applications but this discretion has gone and, to be frank, you don’t even know which Registry is processing your application now. Applications to Newcastle might be processed by Cardiff due to their re-allocation of work internally.

Calls cannot be made and answered easily as there is not a clear way to know where your application is at any one time.

Chase up emails are going unanswered for a sustained period of time or unanswered altogether.

And then there is the fateful day that your Grant finally arrives, and various errors are found within. We have seen a marked increase in the number of Grants that are arriving that are incorrect with rudimentary mistakes such as missing names and surnames. We even had the Probate Registry issue both Letters of Administration (confirming there is no Will) and a Grant of Probate (confirming there is a Will) for the same deceased.

It has become a ridiculous outcome for an organisation that was previously operating to a high standard. I hope that this is set to return soon but, in my view, the backlogs remain severe at the present time.

What are the benefits of being on the panel for your firm and your clients?

It is hoped that the new system is operating to a 20-working day turnaround but as our first application was submit less than 20 working days ago, I cannot confirm whether HMCTS are achieving this yet. I hope they are as for a limited type of estate it might speed up their process, save a house sale from falling through and reduce the grief for families already mourning the loss of someone close to them.

How does the service work? What applications is it appropriate for?

Much of the application information is captured via an online form and legal declaration which is then electronically submit. Payment is also taken electronically and merely the Original Will (and any Codicil) and IHT form is submit to a special postal address for this purpose only, separate to any specific Probate Registry.

The estates that it is suitable for must fit these narrow criteria:

  • Grant of Probate applications only
  • Up to 4 lay Executors are applying
  • None of the Executors can be Partners in the firm
  • None of the Executors can be mentally incapacitated or represented by an attorney
  • You must have access to the original will and any codicil
  • The deceased must be domiciled in England and Wales
  • An IHT form has been prepared and the estate values are available.
  • The application is paid for by either fee account or cheque.

It is intended that when HMCTS have got the detail correct for these simpler applications, that slowly they would open the applications up to more complex applications.  I think this is a good method as otherwise there would be more chaos which we all want to avoid.

Has your firm been involved in the online probate trial? How important is online probate applications in allowing more people to access the legal process?

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