REALITY BYTES: DIGITAL DIFFICULTIES AND THE PROBATE PROCESS

Introduction

The loss of a loved one is understandably a time of distress. However, bereavement can be compounded by the anxieties which are often involved in administering the estate of the deceased.

Understanding Probate

Securing a grant of probate to carry out the terms of a will and address Inheritance Tax (IHT) liabilities is not always straightforward.

Starting the Probate Process:

• Obtain a Death Certificate: The process can only begin once a death certificate has been obtained.
• Determining the Estate’s Details: Authorised individuals need to determine the size and complexity of the deceased’s estate.
• Establishing the Validity of a Will: It’s essential to establish whether a valid Will exists.

Application and Execution: From Probate Registry to Will Execution

Once an application to the Probate Registry has been made and a grant of probate (or Letters of Administration in those cases where a Will is not available) has been made, the terms of a Will or the intestacy rules can be executed.

A Time-Consuming Process: Statistics on Probate Delays

Figures published by the Ministry of Justice (MoJ) have shown that probate is time-consuming, taking three months on average in December 2023  (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2024/family-court-statistics-quarterly-october-to-december-2024).

In February this year, the Government boasted that those waiting times had been reduced due to greater resources being thrown at the problem following intense criticism (https://www.gov.uk/government/news/probate-waiting-times-halved-thanks-to-government-push).

Ministers suggested that the progress had, in part, been due to the digitisation of probate, enabling more people to complete the process online.

However, as our Partner, Nicola Walker recently explained in an article for The Times (https://www.thetimes.com/article/35f7729c-9f44-46cc-a4c8-d08c793bbdac?shareToken=f25f89e3371080d529a9eec7e0650416), it is also true that those same efforts are also now creating complications and delays.

There are, in fact, concerns that the drive to digital has been too hasty and poorly thought through.

There is little doubt that the online system does have its merits for relatively simple estates and applications submitted by one person. According to the Probate Registry, about 80 per cent of grant applications are now made that way.

Nevertheless, there is a wide range of other circumstances in which a digital application just isn’t possible.

Common Issues with the Probate Process

They include instances in which a Will has been lost, in cases of intestacy leaving two or more individuals eligible to apply or where the deceased was domiciled outside England and Wales. In those matters, applications can only be made on paper.

Such situations are far from unusual and reflect how life itself is far from straightforward.

Furthermore, where a Will is available, it needs to be posted to the Registry, checked and assigned to the relevant case file, rather than being more speedily scanned and sent by e-mail.

It is hardly surprising, one might argue, that performing the probate process rigorously can therefore take time. Consider as well, MoJ data demonstrating that the Probate Registry was inundated with 298,295 applications during 2024.

Yet the length of time which elapses between an initial application and the grant being issued has very real financial consequences for those dealing with an estate.

Families have only six months from the end of the month of death to settle an estate’s IHT obligations.

Before a grant of probate is issued, applicants need proof from HMRC that an inheritance tax account has been filed with them and that at least some of the inheritance due has been paid.

From this month, the interest rate on any outstanding balance beyond the six-month limit been raised to 8.75 per cent (https://www.gov.uk/government/publications/rates-and-allowances-hmrc-interest-rates-for-late-and-early-payments/rates-and-allowances-hmrc-interest-rates#:~:text=The%20current%20late%20payment%20and,3.50%25%20from%2025%20February%202025).

Even for individuals whose assets are mainly comprised of cash in a bank account, making the requisite checks before the probate process, liaising with the Revenue and then awaiting an application code from HMRC in order to apply to the Probate Registry has been something of a tight squeeze.

Additional Challenges in Complex Estates

Where the bulk of a person’s wealth is tied up in property, bonds or shares, however, disposing of those assets to meet an IHT bill can be considerably slower.

It used to be possible to lodge a probate application and wait for the necessary acknowledgement from HMRC but now the entire application process has to be put on hold until the HMRC has done its initial work – and that can take many weeks.

A Call for Change: Parliamentary Inquiry into Probate Delays

Awareness of the difficulties which the process creates prompted the House of Commons’ Justice Committee to launch an inquiry last
year(https://committees.parliament.uk/work/8035/probate/news/201171/justice-committee-to-examine-possible-solutions-to-probate-delays/).

Even though its work was cut short by the General Election, Committee Chairman Robert Neill concluded that digitisation was typical of the Courts and Tribunal Service trying “to do too much too soon” and stemmed from a “failure to understand the magnitude” of the task it faced (https://committees.parliament.uk/publications/45085/documents/223445/default/).

The fundamental nature of the stresses on the probate system which he identified can still be seen despite the advances hailed earlier this year by Government ministers.

Although it maintains that grants of probate take seven weeks to be issued on average, the MoJ’s own statistics reveal that, last December, 39,034 applications were not completed more than six months after they were made. In excess of 1,000 had taken more than two years at that stage.

In addition, the delays between submission and completion crept upwards again in the final two months of 2024 despite the best efforts and intentions of all involved.

Practitioners and public alike currently face a digital-analogue hybrid system which is good but could be so much better.

Until a wider range of online submissions is possible, taking into account some of those now frequent circumstances which I have outlined, delays are likely to remain the norm.