Coronavirus update: Are probate delays under control?

Coronavirus has had a dramatic effect on our daily lives, forcing the nation to adapt to a ‘new normal’. Unsurprisingly, many services have been disrupted as we find new ways to live and work safely. One of the areas hit by Coronavirus delays has been probate, which is required in most cases before a personal representative can deal with the administration of an estate.

With over 45,000 Coronavirus-related deaths in the UK, this means that tens of thousands of families are experiencing these delays, and additional stress, after losing a loved one. Moreover, it has made it more difficult for personal representatives to adhere to their legal duty to administer estates within a reasonable period of time.

Recognising this issue, the Government, HM Courts & Tribunal Service (HMCTS) and HM Revenue & Customs (HMRC) have adjusted their usual processes in order to reduce delays and regain control of the probate service.

Background

Delays began in 2019 when a proposal to increase probate fees led to a surge of applications in a short space of time. This coincided with the HMCTS’s modernisation programme, which saw 18 sub-registries close its doors as part of the plan to centralise probate services under one roof. There was a huge backlog as a result, meaning that applications took months to process, as opposed to weeks.

The large number of applications also meant that HMRC experienced delays. Where an estate was taxable, the timescale for return of the inheritance tax receipt slipped to at least 5 working weeks.

By early 2020, the probate service had worked hard to reduce waiting times. Before the pandemic, HMCTS was receiving approximately 4,800 applications per week and issuing 5,200. However, the effect of Coronavirus - with reduced staff, social-distancing and working from home – means that paperwork is taking longer to process and, once again, timescales have slipped.

What has caused the delays?

In addition to HMCTS’s streamlining programme, some district probate registries have been unable to take new applications during the Coronavirus pandemic. This means that some district probate registries have been dealing with multiple areas, for example: Newcastle has covered Ipswich, Norwich and Peterborough, and Cardiff has covered Bristol, Bodmin, Carmarthen and Exeter.

In order to value a person’s estate for probate purposes, the personal representative(s) are required to identify all assets and debts of the estate. Assets will include any bank and building society accounts, investments, pension and life insurance policies, properties, and personal goods the deceased may have owned. Relevant debts will usually be any funeral expenses, mortgages, credit cards, loans and other personal debts.

Many businesses have temporarily closed or been running reduced services. This has caused delays throughout the probate service both:

• Pre-grant: ascertaining date of death balances required for the probate application; and 
• Post-grant: instructing institutions to close accounts and transfer funds payable to the estate.

Furthermore, in the height of lockdown, physical valuations of properties by agents and surveyors were not available due to social distancing restrictions. This has not been a problem for all estates, as many have benefitted from the introduction of virtual valuations. However, it has been an issue for estates that are close to or above the inheritance tax threshold, and have required a physical valuation to be carried out. The closure of many estate agents during lockdown has also unsurprisingly caused difficulties in selling property.

All of the above has meant that rather than applications for probate rising as a result of coronavirus, they dropped to half the normal level in May 2020, this period dubbed the ‘lockdown dip’. Now that lockdown has started to ease, the number of applications to the probate registry has increased with HMCTS confirming that they are receiving more applications per week than it is issuing. What’s more, the number of applications is only expected to increase throughout the summer, with 57,000 applications (approximately 9,000 per week) expected over the coming months.

What has been done to address the delays?

Additional resources

HMCTS has enlisted extra staff to help deal with the increase in probate applications. Despite the pandemic, new staff have been taken on and trained to deal with phone and email enquiries, meaning existing staff can concentrate on examining and processing applications.

While some uncertainty in waiting times is expected, as new staff familiarise themselves with the probate process and applications continue to increase, the additional resources should help to manage the surge of applications forecast over the summer. Legal advisers are also set to join HMCTS to help meet the expected demand.

Registering the death

Before Coronavirus, deaths had to be registered at the local register office. This meant that the person registering the death (the informant) would need to physically attend the office and sign the register in the registrar’s presence. However, when lockdown and social distancing measures were announced, face-to-face registrations were no longer possible and registration offices closed.

The government has addressed issues with registering a death through the Coronavirus Act 2020, allowing ‘remote registrations’. GPs are able to certify a death without physically attending and can send an electronic copy of the Medical Certificate Confirming cause of Death directly to the specified registrar, without the informant needing to collect it. Likewise, informants can provide details required for the register entry over the phone or online, without needing to physically attend a register office.

Electronic signatures

Usually, personal representatives of an estate are required to physically sign the probate application before it can be submitted. In the time of social distancing, this poses practical difficulties particularly where there are multiple personal representatives. To address this difficulty and to avoid any additional delay, HMCTS has agreed to temporarily accept electronic signatures instead.

In addition, where an affidavit (a statement sworn in the presence of a solicitor) is required, such as when a Will has been lost, HMCTS will accept a signed statement, making the process much easier to complete.

HMRC have also confirmed that they will accept electronic signatures on inheritance tax forms where previously ‘wet’ signatures were required. They have also started to send IHT421 (inheritance tax receipts) directly to HMCTS, in order to process applications quicker and reduce delays.

Online probate service

In October 2019, HMCTS launched a pilot scheme of their online probate service, aimed to make the probate process an easier and better experience. Legal professionals have been involved in the ongoing development and expansion of the service so that the majority of estates, except those with exceptional circumstances, can be submitted online.

It is not a fully digital service, as you are still required to send the original Will and, in the case of personal applications, the death certificate. Some commentary also suggests that the online process is not necessarily quicker, although it does allow you to track your application. HMCTS are continuing to improve the service in line with feedback it has received.

Comment

As of the end of June 2020, government figures showed that applications are typically taking 5-6 weeks to process, with 4,000-5,000 processed each week. With additional staff and simpler processes now in place, HMCTS expect their usual timescales to resume in September/October.

Here at Boyes Turner, we want to reassure our clients that while Coronavirus continues to cause disruption and challenges for many, we are providing the same high level of service to ensure a smooth and stress-free probate service. With that in mind, while it is not necessary to begin the probate process immediately after losing a loved one, our best advice is not to leave it too long or you may get caught in a backlog of applications.