News | March 11, 2024

Justice Committee – Probate Service – Wedlake Bell Consultation response

Wedlake Bell LLP is a central London law firm whose history goes back over 230 years. It has 75 partners and is one of the top 100 firms in the UK on turnover.

The firm welcomes the opportunity to respond to the Justice Committee’s inquiry into the HM Courts & Tribunal Service’s (“HMCTS“’s) probate registry performance (“Call for Evidence“).

Wedlake Bell’s response has been prepared by its Private Client team, who have extensive experience of advising clients on obtaining probate and the administration of estates. The team is ranked in the Legal 500 (Tier 2) and Chambers High Net Worth guide (Band 3) and commended for Inheritance and Succession in The Times Best Law Firms 2024.

Any text in italics below is text lifted from the Call for Evidence.

Scope of Inquiry

The Probate Registry has been experiencing significant delays. There are wider concerns about how effectively beneficiaries, executors and the bereaved are supported through the process and protected from rogue traders. The inquiry will take evidence on capacity, resources and delays across the probate service, and the impact of digitisation and centralisation, including the effectiveness of the online probate portal. The inquiry is interested in people’s experiences of applying for probate including how the administration of probate could be improved for people who are already coming to terms with the loss of a loved one.

Key questions

1.  Capacity, resources and delays

  • Does the probate service have the necessary resources, capabilities, and expertise to process applications for probate, including complex probate, in a timely manner? If they do not, how could this be improved?
    • What are the principle causes of the delays in issuing grants of representation?
    • What is being done to overcome the current delays and are there any gaps?
    • What is being done to bring greater resilience to the probate system to mitigate against future delays?
    • What has been the impact of delays and what should the Government do to mitigate that impact?
    • What can be done to avoid stops?
    • How well is the system working for complex probate applications? WB response:

While we cannot comment on the availability of resources in the probate service, it is evident that probate (“Grant”) applications are not being processed in a timely manner. Before 2018, a Grant could be obtained within two weeks; now, while some online applications are taking between 8 and 16 weeks provided that they are straightforward and not “stopped” by a query raised by the Probate Registry, paper applications can, in this firm’s experience, take up to 52 weeks to process which is an unacceptable length of time to wait for a Grant to be issued.

As regards capabilities and expertise, before the introduction of the current system there were legally trained staff in the District Probate Registries who fully understood the probate process and could provide guidance by telephone or in person. This collaborative approach was particularly helpful for complex and/or unique estates, and was both time and cost effective for all parties. The loss of this expertise under the new system is, in our opinion, one of the main reasons for the current delays. Any queries on an application, regardless of how minor, can now result in a “stop” and weeks of delay, whereas previously, with the benefit of legally trained and experienced registry staff, these were resolved quickly and in some cases avoided entirely.

While the HMCTS’s £1billion Reform Programme aimed to bring new technology and modern ways of working to the way justice is administered, and the expansion of the online Grant application service should have reduced pressure on Probate Registries, instead it can only cope with very straightforward cases. Turnaround time is inconsistent and significantly slower when compared to the previous service. There is no alternative structure to deal with complex Grants, and this results in further problems and delays.

The requirement to wait 16 weeks before being able to contact HMCTS directly to check the progress of an application is a further reason for the delays. The current call handler response system does not provide any constructive information. Wait times to speak to call handlers is often up to an hour and the information provided by call handlers is usually extremely limited. The call handlers do not appear to be legally trained and so cannot provide advice about complex matters. Aside from providing updates on the stage an application has reached the call handler system serves no practical purpose.

The impact of these delays cannot be overstated. Aside from the obvious personal distress of dealing with a loved one’s estate, estates are now burdened with overdue inheritance tax payments subject to interest at 7.75% if assets cannot be realised within this timeframe because the Grant has not been issued, adding a considerable financial burden to personal representatives and bereaved families.

In addition to this, not being able to obtain the Grant in an efficient and consistent fashion creates situations where estates are unable to sell estate assets, including property and investments, in a  timely manner. This makes estates vulnerable to losing potential property sales and/or the risk of a down turn in markets with investments having to be sold at a loss which would have been avoided had the Grant been issued within two weeks under the previous regime. In a worst case scenario this can also lead to estates being timed out of the deadline to claim inheritance tax loss relief.

Introducing a two tier system to separate straightforward and complex and urgent Grants, and reinstating legally trained and experienced staff to assist with queries both before and during a  complex application, would reduce “stops”, mitigate delays and significantly improve the current process.

Under the present system there is no opportunity for either professionals or members of the public to discuss Grant applications at a District Probate Registry. The Probate Registry online reform programme was intended to provide a more efficient service but the reverse has been true. The designers of the software appear to have been under the impression that applications for a Grant are a simple tick box process which could be dealt with by untrained staff. The reverse is true and in an ideal world the best solution would be for the reinstatement of District Probate Registries, manned by District Registrars supported by fully trained probate staff who are able to provide applicants with the required technical assistance.

2.  Performance measurement and data

  • What mechanisms and metrics should be used to judge on a regular and ongoing basis whether the Probate Registry is performing well?
    • Does HMCTS have the data necessary to enable performance of the service to be monitored? WB response:

The Probate Registry’s performance should be judged on their response times. Bearing in mind that under the previous system it was possible to obtain a Grant within seven days, with two weeks being the standard timeframe, if Grants could be guaranteed within one month of an application being submitted, although not back to the same expected level of service, that would be proof of improved performance. After which, given the extent of investment, it is not unreasonable to expect the Probate Registry to achieve at least the same level of service delivered prior to the Reform Programme.

Queries should also be dealt with in a timely and professional manner. Email queries more often than not go unanswered. It is reasonable for the Probate Registry to adhere to a minimum standard of service level and guarantee a response to an email query within a reasonable timeframe (i.e. 5 working days). There should be no 16 week prohibition on making telephone enquiries. In person calls with properly trained staff allow queries to be dealt with quickly and efficiently.

We cannot comment on whether HMCTS has the data necessary to monitor service performance.

3.  Technological change and innovation

  • Does the probate portal provide improved access to justice and value-for-money?
    • What is the potential for technological change and innovation to improve the future operation of the probate system?

WB response:

In our experience the probate portal contains helpful features, such as the event history feature. However, this firm has experienced inaccuracies in the information provided by the portal. For example, we dealt with an estate where the portal stated in early July 2023 that the registrar has issued the Grant. Upon calling the Probate Registry later in July 2023 to ask when the Grant would be dispatched we were advised that the Grant had in fact not been issued and the matter had instead been referred to a Registrar. The Grant was eventually issued on 18 September 2023 after a complaint was made. If the information provided on the portal is inaccurate then, when coupled with the prohibition on telephone enquiries within 16 weeks, there is no way to obtain an accurate understanding as to the progress of a Grant application within the first four months of the application having been made.

Overall the standard of service provided by the probate portal is, however, low and does not provide value for money. If the Probate Registry’s service improved back to its pre Reform Programme levels, it will also be unnecessary as Probate Registry users will have the confidence and certainly that the Grant will be issued within a two week time frame.

We cannot comment on the potential for technological change and innovation to improve the probate system but do comment, as demonstrated above, that the technological investment programme so far has radically diminished and lessened what was a highly efficient, effective, and self- funding Probate Registry. The use of technology and innovation are essential to any modern day service but in this case it appears an over reliance on and lack of stretch testing of the technology, and an underestimation of what skilled and well trained staff offer, has led to a much reduced service.

4.  People’s experience of probate

  • How well are beneficiaries, executors and the bereaved protected and supported through the probate process? Are the needs of particular groups, such as disabled people or older people, appropriately considered? If not, what steps should be taken and what relevant examples of best practice exist?
    • How well are people protected from rogue traders? Is sufficient information and support available to individuals?

WB response:

In our experience, beneficiaries, executors and the bereaved are neither protected nor supported by HMCTS through the probate process. Feedback we have had from clients include comments on the portal being confusing, and overwhelming frustration with inexplicable delays. There is no consideration for any particular groups. Those who are not technologically adept will struggle with the online process and, as mentioned previously, do not have the option to discuss concerns and/or resolve queries with appropriately trained probate registry employees.

We do not have any comment on protection from rogue traders.

5.  Fees and thresholds

  • Are the fees and thresholds set at the right level?

WB response:

When probate fees were increased in January 2022, the Ministry of Justice promised that the additional revenue would go towards the cost of processing applications to ensure shorter waiting times, fewer user and administrative errors and provide an overall improved experience for users. This has not materialised.

Concerns were raised when a universal fee for professionals and individuals was first proposed in 2021 as it was thought this could discourage the use of probate professionals and lead to an increase in work for the probate service due to a rise in mistakes or errors in applications. We do not know the extent to which this has been a factor in the current delays but in any event, with the time taken to process Grant applications increasing to up to twelve months in some cases, plus a service which is considerably diminished in quality, it is hard to determine what level of fee is justified.

Justice Committee – Written evidence – Committees – UK Parliament