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Nicola Laver

Editor, Solicitors Journal

Solicitors blamed for probate delays

Solicitors blamed for probate delays


Private client solicitors have reacted in anger at the suggestion they are to blame for delays at the probate registry.

Private client solicitors have reacted in anger at the suggestion they are to blame for delays at the probate registry.

The latest blog post from HM Courts & Tribunals Service (HMCTS) accepted that the current level of performance is unacceptable.

HMCTS national services director Jonathan Wood acknowledged faults on the part of HMCTS and said: “We are sorry that over recent months our performance has been too slow and has kept people waiting.”

However, he said: “A considerable number of applications for probate have to be stopped because we need further information or assurance before we can issue a grant of probate.

"These stops are usually because there is a document missing, a procedural defect (for example, names on the will not matching precisely with the application or the death certificate) or we need further confirmation that the documents being submitted are correct.”

Stuart Adams, managing associate at Mishcon de Reya, responded to the comments and said: “I don't doubt that some applications are defective – perhaps documents have been omitted or the statements of truth are not in the correct form – but I would expect the number of applications affected to be modest.”

But he said the causes of delays have been well documented: “We went from a system which resulted in a grant being issued within 14 days max, to one where eight to 12 weeks became the norm.

"Even when grants have been issued, some have been found to have 'red pen' amendments made to them by registry staff which, understandably, financial institutions are weary of; and specialist fora are littered with examples from practitioners of those amendments resulting in further applications.”

Birmingham District Probate Registry is also due to close its doors on 30 August and is likely to be followed with further registry closures.

In his blog, Wood admitted other factors were also to blame for the delays including unrepresented applicants who “lack support to engage with us and have often struggled the most to use our service”; teething problems when HMCTS first migrated work to a new system; and a 50 per cent increase in applications during March and April.

This increase coincided with the expected hike in probate application fees (this has not yet materialised) which Wood did not mention.

He wrote that while more than 30,000 people have used the online application process other user groups have yet to use it.

He added: “We have had a huge surge in demand which means we’ve not been able to process the applications quickly enough. There is clearly more we can – and will – do to improve the service further.”

He says more than 1,000 grants are issued each day and the waiting times for applications are between six to eight weeks (with some exceptions). However, solicitors are regularly reporting waiting times of five or months or more.

Adams said he filed several applications in the period immediately after HMCTS switched to its new system and has waited up to 12 weeks for grants. 

Solicitors have also reported cases where applications have been transferred between probate registries with papers being lost in the process; and errors on grants issued which then have to be returned to the probate registry.

Practitioners are also frustrated at being unable to effectively chase up applications. Adams explains: “One registry I have called in the last week has an automated message which informs the caller that its staff cannot take calls to advise on the progress of an application.

"Instead, they advise that if the fee cheque has been presented, they have the application and will progress it as quickly as possible.”

He explains the impact of the delays: “Without a grant of probate or letters of administration on intestacy, there is very little the personal representatives can do in respect of administering the assets of the estate.

“This means assets cannot be sold or transferred. I have heard various stories about how the delays have affected people's lives.

“In my experience, families just want to get on and finalise the administration of an estate and they find the huge delay in obtaining a grant to be very frustrating. 

“Of course, this comes at a time when they are grieving.” 

Wood said he expects delays to be reduced now that HMCTS has increased its workforce by 20 per cent to deal with a backlog of more than 40,000 applications.