10 December 2020

Probate Court Delays

By Miranda Marshall, Director, Hayes + Storr.

Hardly a day passes when I don’t get asked ‘So how much longer until probate arrives?’. The probate court shambles are so bad they have even made it into the national press. A recent survey undertaken by the specialist group Solicitors for the Elderly (SfE), of which I have been a member since its foundation, has shown the following. They make sorry reading.

96% of the specialist lawyers who were surveyed said that the new online system is not fit for purpose (I would love to hear from one of the 4%). 57% had seen delays of between 9-20 weeks, with 8% having faced delays of longer than 32 weeks. 94% said that they had seen suffering or extra distress for their grieving clients who faced extra heartache. 57% of solicitors surveyed said that they had seen a client’s house sale fall through due to probate court delays and 31% said that it had led to unpaid inheritance tax (IHT), or interest or penalties being imposed.

Let me speak up for my profession to say that it is not the solicitors who are causing the extra hold ups. We have been told not to bother the court with ringing to enquire as to progress, as this will further delay the system. It is as though the Court thinks that we have nothing better to do.

Solicitors are now required to submit probate applications online, but the new system has insufficient infrastructure to cope. The move to streamline and enter the digital age sounds laudable, but the process is far from complete and has not been implemented as it should have been. The current system can only cope where there is a Will. It is not set up for cases where there is no Will (what is called ‘intestacy’).

In the meantime, the two-tier system causes further delays for those not using it and is creating the unfairness that follows. Arguably, where there is no Will it is more important to obtain the Grant quickly as there is no one authorised to deal with the deceased’s estate, until it is issued.

We are still required to complete the HM Revenue and Customs (HMRC) forms and to pay the IHT tax due on the estate before the probate process can proceed. HMRC and the probate courts are still operating under two different systems and, whilst HMRC are supposed to be emailing the required information direct to the Probate Registry, the forms are delayed or never arriving. Even where the application is made online, there is still the requirement to send the original Will to the Probate Registry by post.

Many practitioners have reported a massive increase in the numbers of original probate applications (including the Wills themselves) being lost by the probate registries (just where do they go, I wonder?!) in the last few months, as they have struggled to cope with the lack of investment in the rest of the probate infrastructure made worse by Covid-19. With the new online system becoming mandatory, whilst still unfit for purpose, things will only get worse.

One of my colleagues rang up the probate registry and spoke to a court employee who admitted that he was working from his bed in his shared flat, as he had no desk at home. The majesty of the Court, indeed!

The typing errors are appalling. Grants come back with ordinary common names misspelt in hilarious ways: Anglea, Maragret, Jonh, Geroge….! When I qualified, a Grant of Probate was a thing of beauty on thick paper and embossed with a seal, errors were unknown……sadly, no longer. I had one grant issue shortly before Covid (when I was practicing out of Chancery Lane, Wells) where the address was given in the Grant as Cancery Lane – particularly horrific as the departed had died of cancer. Families, quite fairly, do not like it. And in extreme cases the banks and other institutions get very picky.

It is just delaying things for bereaved families and is making a mockery of the probate system for both lawyers and our clients.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.