Dealing with the death of someone close to you is always a difficult time, and the probate process is no exception. People are naturally eager to complete probate as smoothly and quickly as possible and are often dismayed to learn that ongoing delays at the Probate Registry may mean the process is more drawn out than they were anticipating.
Obtaining a grant of probate is a key element in the process, as it is usually needed in order to access accounts and distribute assets. Unfortunately, data from HM Courts & Tribunals Service (HMCTS) in September 2023 shows that probate delays are continuing to grow.
The average total time taken from submission to grant issue for all probate applications, including both digital and paper, was 14 weeks for applications submitted in the quarter to June 2023, and this represents the biggest delay since 2019.
The average time taken from submission to grant for letters of administration with a will was 18 weeks in that period, and for letters of administration without a will (i.e. on an intestacy) was even higher at 23 weeks.
Why are there delays at the Probate Registry?
There is no one reason for the delays, although part of the problem does stem back to the pressures of the pandemic and subsequent lockdowns of 2020 and 2021. This created a backlog, which has since been compounded by a range of issues.
If there is an error in the application, or queries need to be raised, there is a second wait for the additional information provided to be reviewed, so those applications take much longer. In addition, the Probate Registry acknowledged that it is now working its way through the oldest outstanding applications which is impacting the timescale.
These delays have been frustrating for personal representatives, lawyers and beneficiaries alike.
What steps are being taken to address probate delays?
HMCTS is acutely aware of the impact the delays are having and has put some steps in place to improve the issue, but these don't seem to be helping. These include:
- Employing and training more staff
- Centralised their telephone and email response centres
- Got up to date with the scanning of cases onto the system
- Will be expanding their online service to cover more types of cases.
Are there any other delays to do with probate?
Unfortunately, at the same time that the Probate Registry is experiencing increasing delays, HMRC is also getting slower at processing the Inheritance Tax accounts (which need to be submitted before you can apply to the Probate Registry for a grant). HMRC must send an inheritance tax receipt to the Probate Registry before the application for the grant can be made. Guidance previously was to wait for at least 15 days after submitting the Inheritance Tax account before applying for a grant. That has now been extended to 20 working days, but in our experience it can take HMRC up to 25 days to issue the receipt. This obviously delays the process even further.
What issues can probate delays cause?
In practical terms the delays can have an impact on the beneficiaries of an estate in a number of ways:
- Beneficiaries are having to wait longer to receive an inheritance, which can be emotionally difficult but also means they can't easily plan for their future
- In some cases, valuable inheritance tax reliefs depend on being able to sell an asset with a year of death: if it takes longer than that to obtain the grant, the relief is lost
- Where an estate contains a property, there are potential additional costs to running a sometimes empty property
- Property can't be sold before a grant is obtained, which is particularly frustrating in a falling market
- Where some estates take longer than two years to administer, this can involve additional expense such as the requirement to register such an estate with the Trust Registration Service
- There may also be a requirement for additional tax returns to be filed as the estate simply continues in existence for longer.
Is there any good news?
Yes – we are finding that more recently, certain applications are progressing more quickly: some online applications are taking between 8-12 weeks (if they are straightforward and not "stopped" by a query raised by the Probate Registry). Paper applications are still taking longer. The Law Society and other professional bodies are putting pressure on HMCTS (who are responsible for the Probate Registry) to improve things.
If you have any questions about points raised in this article, or about the probate process in general, then please do get in touch.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.