Probate practitioners debate solicitor MP’s blast on probate service

Probate practitioners discuss Solicitor and Conservative MP’s strong views on probate service in a Westminster debate recently.

Conservative John Stevenson MP spoke at a Westminster Hall debate saying the probate service is overwhelmed with more delays and errors than it was two years ago, even though there are now higher staff numbers and a bigger budget.

He told the government that the quality of the probate service has ‘deteriorated’ since district registries were centralised and paper applications were replaced by a digital system.

He has reported waiting up to 17 weeks for grants of probate and said solicitors can spend 50 minutes on the telephone waiting for a response to a probate enquiry. He added that ‘errors are creeping in in a way that would have been unimaginable previously’ and that the government had ignored advice from practitioners to delay the introduction of mandatory online applications.

Stevenson asked: “Could the minister please explain how a service which employs more people and costs more is now delivering a poorer service? Could the minister explain how introducing new technology which was meant to improve the service has resulted in probate being issued in seven weeks plus, compared with the previous system, which was around three weeks?”

With the probate registry currently standing at 215 staff members, compared with 156 in 2018, and costs £7.5m to run, up from £5.7m two years ago, we asked probate experts what they thought of the MP’s views, whether they were in agreement or has their experience been different.

Louise Sackey, senior associate at IDR Law said:

“It appears that the odds have been somewhat stacked against the Probate Registry with the substantial delay in probate applications in late 2019 as a result of the proposed increase in probate fees and the rush to get applications issued before the increase.

“Then after waiting times improved in early 2020, March 2020 bought the pandemic meaning that reduced staff and social distancing meant applications were again taking longer to process, even though significantly less applications were being made throughout the initial lockdown. This resulted in a back log but also a surge in applications after the first lockdown was lifted.

“However, in October MyHMCTS was introduced requiring professionals to apply for probate applications online only which HMCTS insists will help with waiting times by digitalising the process but also meaning that the staff working from home now have access to these applications straight away.

“Data from HMCTS shows that generally up until the 6 September it was receiving more applications in than it was issuing grants. However, data for the weeks dated 13 September and 20 September 2020 show that it was issuing more grants than it was receiving applications. Updated data is not available until December, so it remains to be seen if HMCTS are still maintaining this turnaround and if the processes put in place are continuing to work!”

Ian Bond head of wills & Estates at Thursfields Solicitors further commented. He said:

“I am aware of the comments of John Stevenson about the service from HMCTS in issuing grants of representation. As a member of the Probate User Group (on behalf of the Law Society) I can confirm that we meet regularly with HMCTS to discuss issues and make suggestions for improvements in the service. The Law Society (and others) responded to HMCTS on the subject of mandating professionals to use the online service for the majority of standard applications. In an ideal world we would want a fully functional and tested service to be launched where all applications can be made online but we have to face up to the reality of where we are. In terms of performance HMCTS are clear that they think that their service is good given the current climate – most of their staff, like the rest of us, are working from home. The service we see now, in the midst of a pandemic, is not representative of what it would be without the restrictions of lockdown. The new systems allow HMCTS to keep processing applications in a way and in a volume that they would not be able to on the old system during lockdown.

“HMCTS have engaged with all practitioners to make the systems and guidance as user friendly as possible. The MyHMCTS website has new guides on how to sign up for the service and also how to make applications. These are very useful for practitioners. Recently they have created a short article on the top five ‘stops’ and how to avoid them. Again very useful for practitioners to read. One frustration for practitioners is the level of IT hardware they need to use the MyHMCTS system and the fact that the portal doesn’t have infrastructure to support “Internet Explorer” and so firms running old browser software on Windows 7 or 10 infrastructure do not get the full service and find that the MyHMCTS site is unstable and crashes.

“I note the concerns over time it takes to answer telephone queries. Nobody likes to be kept waiting; it is frustrating. HMCTS have introduced enhancements to the portal so that practitioners can get updates on the portal and therefore remove the need to make phone calls. HMCTS have stated that they are seeking to balance the number of staff allocated to answer calls with the number of staff who issue grants. As we all want our grants issued HMCTS have focused their resources to issue grants and not answer calls. They have stated that practitioners should not call them if the application is less than 8 weeks old as they won’t be able to give an update.

“For me as a practitioner I have found that most of our applications at Thursfields are going through in about 4 weeks; we have had an online application back in 10 days. Online is quicker than paper applications. However, conscious that we also have had a few outstanding applications that have dragged on in waiting to deal with stops, but none at the 17 weeks mentioned by John Stevenson. I have no doubt that some firms are having a horrendous time getting to grips with the MyHMCTS online portal, not having calls answered, and waiting for grants to be issued. The Probate User Group are (as always) looking for constructive ways to engage with HMCTS and to resolve issues. I welcome any practitioner to contact me with any constructive ideas and suggestions they may have.”

Michael Culver, Chair of SFE, the membership organisation for specialist lawyers who support older and vulnerable people, says he’s continuing to raise serious concerns about the impact of probate delays on solicitors and consumers. He says:

“We’re currently running a survey of our members on this very issue and as they stand the results show the additional time, worry and stress it’s placing on solicitors is absolutely unacceptable.

“Some 57% of SFE members have spent eight hours or more in extra time dealing with issues at the Probate Registry in the last six months. For 30%, this is more than 15 hours.

Most (37%) say they are facing delays with grants of 9-16 weeks but for 20% this is 17-20 weeks, and 8% have faced delays longer than 32 weeks. Some 96% agree the new online system isn’t currently fit for purpose.

“We hear reports of extra heartache and distress for families, house sales falling through, penalties levied for missed inheritance tax payments, and solicitors shouldering the blame for delays that are out of their control.

“There are times where the new online system doesn’t work even for the simplest of applications. There are glitches, barriers, and whole sections that aren’t relevant or force you to make choices that aren’t right for your client. Many Grants of Probate then end up being issued with errors, further adding to the delays.

“It just isn’t good enough.”

Tara McInnes, principle associate at Shoosmiths added:

“My contact with the Probate Registries is probably less so than non-contentious solicitors but I do come into contact with them where my clients are involved in the caveat process or the non-contentious probate rules. That said, I have definitely noticed that in recent times, the standard of service provided has deteriorated. If a matter is straightforward then usually I do not experience any problems. However, if there is ever a need to contact a probate registry or the matter is transferred between registries this seems to be when the problems arise. In respect of one of my matters where it was necessary to issue a notice of appearance to a caveat, it has taken eight months to contact someone at the probate registry who is able to explain why the notice has not been lodged. I have chased on a regular basis and been passed from pillar to post with each person I speak with giving me a different reason and suggesting I email my concerns in. The emails take days and sometimes weeks to be answered and the answer is often not helpful and merely informs me to contact another registry. In the end I have had the matter referred to a registrar twice and eventually had to complain. Finally after eight months I have been told that there was an issue with the warning lodged by another firm of solicitors and therefore the appearance cannot be lodged . My clients are effectively back to stage one but having incurred substantial legal costs in the process. Had I been able to speak with someone in January, when we first tried to lodge the appearance, who had access to the file then eight months of stress and costs could have been avoided.

“I have had other instances too with clients coming to me after issuing a caveat personally but wanting it removed and where the parties are in agreement but the registry refuses to remove the caveat. Usually in these matters, there has been an issue with one of the steps taken by the client in the process, which could easily have been resolved by the registry explaining the missing step or error. However, instead of doing so the matter drags on for months with no one at the registry taking ownership of the problem and no one explaining what the issue is. This then means the client has to instruct me to ascertain what the issue is and in the meantime, my client incurs stress, costs and delay.

“I also empathise with the MP’s comment regarding the time spent on the telephone, I have spent many wasted hours trying to contact someone at one probate registry to be informed that they cannot deal with the matter as it has been referred to another registry. There appears to be a complete lack of cohesion and interaction between the different registries and the delay in receiving an, often unhelpful, response by email would not be acceptable in any other industry. I simply cannot imagine how lay people are able to progress matters at all when it is difficult enough for solicitors or how private client solicitors manage to deal with the registry on a daily basis. Where I now need to issue proceedings which could quite feasibly be dealt with in a probate registry, I am having to advise clients to consider the delay and concerns in the registries when deciding which forum to issue in.”

Emily Deane TEP, STEP Technical Counsel further added

“We understand that the Probate Service currently has a large backlog of probate applications to process due to an unexpected surge of applications which has been compounded by delays caused by the new case management system. We urged HMCTS to consider several issues before mandating the online process for all professional applications on 2 November. We advised that the mass roll out of the online service should be delayed and that by addressing our concerns in advance HMCTS could significantly improve the system and help to avoid unnecessary administrative difficulties and delays for users. We were disappointed that our recommendation was disregarded but were pleased to note that the more specialised applications can still be made via the traditional paper route.”