Waiting for Godot

With delays to probate causing bereaved clients to experience stress, anxiety and financial losses, Catherine Baksi speaks to CILEX lawyers at the coal face and considers what actions could be taken to improve a failing system

CILEX lawyers specialising in private client work want to see changes to the inefficient probate service, which has been beset by delays.

Considerable waits for the granting of probate are leaving some grieving clients suicidal, unable to sell their homes and out of pocket. Speaking earlier this year, then CILEX president Emma Davies observed that “this is having a considerable impact on CILEX lawyers and their bereaved clients, causing stress and anxiety at an already difficult time in their lives”.

The trouble stems from reforms introduced in 2019 to digitalise the applications process and replace the regional probate offices with a single central office in Birmingham. Experienced staff were lost and these issues were made worse by the impact of the covid pandemic.

Data obtained from the Ministry of Justice (MoJ) by wealth management company Quilter showed that the number of probate cases taking over a year to be granted has risen by 65% over the last three years, as has the volume of matters taking just under two years.

Although the latest MoJ figures indicate that situation is improving, CILEX lawyers point to a lottery which sees some cases still taking as long as 14 months.

Delays and stress

The process for granting probate was, say lawyers, working well before the changes were introduced five years ago. Lawyers got to know the skilled staff at the local registries, who could help with their queries.

They question why the changes – which they argue have made the process less efficient- were made, and favour a return to the previous method.

Kim Boylett, CILEX lawyer, director and head of wills and probate at Boyletts Law in Hertfordshire, says that “under the old process, with lots of registries you used to be able to give them a call if you had an unusual problem or had a sale that needed to be done quickly to prevent detriment to the family”.

Since the online portal and call centre replaced the paper system and local registries, however, “you speak to people who are not trained and all they can tell you is that there are delays. They can’t answer any questions and sound so stressed and unhappy.”

The government’s attempts to streamline and modernise a system that was working well, Ms Boylett says, have resulted in one that is “not fit for purpose”. She criticises the “tick-box” online application form, which “does not take into account any circumstances that are out of the ordinary”.

She gives the example of a case in which an individual died years ago without anyone applying for probate. Now the family wants to sell to the house, but the online process provides no way to make an application in these circumstances.

Ms Boylett has resorted to drafting statements and affidavits in the old manner, which she has sent to court and “hopes for the best”.

In addition, she says, there is nowhere for lawyers to go to if they need to speak to someone for guidance. Emails are not replied to and Boylett has given up sending the PA18 query form to court because she says no one has ever responded.

Emotional cost

The impact on clients, who may already be suffering due to the loss of a loved one, is huge both financially and emotionally.

When probate is delayed, the deceased’s assets, including their bank accounts, remain frozen, preventing beneficiaries from accessing funds they may be relying on for living expenses. Clients are losing money because they cannot sell property or share portfolios, and can incur costs for maintenance, management fees and unoccupied house insurance.

“The impact on clients, who may already be suffering due to the loss of a loved one, is huge both financially and emotionally” 

Probate delays have left some clients feeling suicidal because they are running out of money, the House of Commons’ justice select committee heard in April, in an evidence session examining the problems.

Stuart Simpson, the head of end-of-life services at Equiniti, a financial services company, told MPs: “We have seen people where the main income earner in that relationship has passed away but they cannot receive the funds they need to live on because they are locked up until you have probate.”

He said his staff had received a few calls from clients saying: “I am suicidal and I have thoughts around how do I live. Because of the delays I can’t get the funds I need.”

Demonstrating that it is not only wealthy people who are affected, Mr Simpson told the committee about a case last winter of a man who called and asked if there was a way to release funds before obtaining probate, because his mother could not turn on the heating.

David Isbister, CILEX lawyer and partner at Belvederes Solicitors in London, says: “Clients are being punished at a time in which they are vulnerable. They want to grieve the loss of a family member or close friend and have to deal with delay on delay and often have to suffer financial loss as a result.”

Despite the delays, which are due to failure of one arm of government, for estates where inheritance tax is due, it must be paid within six months of a person’s death. If it’s not, relatives are charged interest by another branch of the state, HM Revenue & Customs (HMRC). For some, this means that they are forced to borrow money, often at expensive rates of interest.

Problems are compounded as HMRC charge interest on unpaid inheritance tax regardless of probate delays

Charities are being affected too. Angela Morrison, chief operating officer at Cancer Research UK, told the justice committee that the charity had been unable to invest in 44 projects this year because of probate delays.

The problems negatively affect the perception of lawyers’ competency and their professional relationship with clients. “Clients blame us,” says Ms Boylett, who understands their frustration.

“People don't believe that a legal system would be that bad – they have faith in it. They are paying for a service and expect it to be swift and efficient,” she explains.

The variability in time taken to process grants also causes anger and confusion for clients, adds Ms Boylett, whose longest case took 14 months.

“I applied for a grant two weeks ago, which arrived six days later. But others have taken 10 months,” she says. “When clients say that their friend got probate in two weeks, they want to know why their application is taking 10 months.”

As lawyers are paid for their services out of money from the estate, delays also have a serious impact on their cash flow. “We can be working on a file for up to year without receiving any fees on it,” notes Ms Boylett.

To add to the problems, she goes on, when grants are eventually made they frequently contain errors, including misspelt or incorrect names, which means further delay.

Room for improvement

The justice committee’s inquiry into the probate delays was cut short by the calling of the election, meaning a full report was not produced, but Sir Bob Neill, the Conservative chair of the committee, who was standing down as an MP, wrote to justice minister Mike Freer setting out some suggestions for improvement.

Chief among them were that the MoJ should “conduct and publish a lessons learned exercise to ensure that the causes of failure are fully understood across the department” and publish data about its performance so that lawyers can manage client expectations.

He said: “It is unusual for select committees to come across a cost-effective response to problems that can be implemented at speed without political difficulty. However, on this occasion, there is such a response: release the data.”

Sir Bob attributed the problems to the MoJ’s “failure to understand the magnitude of the centralisation and digitisation projects and a failure to appreciate the importance of an experienced and skilled workforce”.

He told Mr Freer: “As you said to the committee, [the court service] tried to do too much too soon, with too little testing and the department lacked the skill to manage complex IT and business reengineering projects simultaneously.

“In this context, your apology before the committee for the level of service failure is to be welcomed… it is clear that you and the wider team have devoted time and energy to understanding what has gone wrong and on working on the recovery plan.

“I sincerely hope your predictions for the sustained recovery of the service by September 2024 will be borne out.”

To combat reports of “bad actors in the probate and will writing sectors” Sir Bob said the question of further regulation in the sector had been raised. He also suggested that the Law Commission, the government’s independent adviser on law reform, consider whether the Non-Contentious Probate Rules 1987 should be updated.

Practitioners also have ideas. A priority, says Ian Hunt, CILEX lawyer and managing partner at East Devon Law, is to recruit more staff and to pay them adequately to prevent them being poached by other government departments.

His view is mirrored across the profession, including in CILEX’s response to the justice committee’s inquiry in January. It called for greater funding and skilled staff with the “the technical and legal knowledge to deal with complex applications, stops and enquiries”.

Emma Davies highlights: “While the use of technology and streamlining of the process would be potentially useful, it is a lack of adequate staffing that is at the heart of the problem.”

“Recruit more staff and pay them adequately to prevent them being poached by other government departments” 

She advises that the service needs sufficient staff with the capacity, training and experience to handle complex cases, to deal with stopped applications and respond effectively to enquiries.

“Without adequate resources, it is unlikely we will see any improvements in waiting times for probate any time soon,” she says.

CILEX also recommended improved communications to alleviate the problems caused by a lack of updates on applications, streamlined procedures for straightforward applications, and a facility for users to track progress and make enquiries online.

Members suggested the possibility of reopening district probate registries “equipped with qualified and knowledgeable staff” to assist with capacity issues and allow for more direct contact.

Other recommendations included pre-screening applications, widening online services with options for different types of applications – instead of a one size fits all approach – as well as more prompts, clearer guidance, and the ability to raise enquiries and receive updates about stopped cases via the online system.

For estates where inheritance tax is payable, Mr Isbister says the tardiness of the Probate Registry is compounded by delays at HMRC in issuing the code required before a grant of probate can be made.

While several of these recommendations will take time for the government to address, he suggests some immediate solutions that could alleviate the problems caused by HMRC’s rules and delays.

“Acknowledge the obvious conflict, in that the entity that creates the delays financially benefits from them in the form of interest, and penalties for late payments,” he says.

To reduce delays, he recommends removing the requirement to lodge an inheritance tax return from the probate process.

Provided the application for the grant and inheritance tax return is lodged within 12 months from the date of death, he suggests: suspending all interest on unpaid tax from 12 months from the date of the grant; suspend interest and penalties on unpaid income tax from nine months from the date of the grant, and extend relief following loss on sale on all but property to 12 months from the date of the grant.

He also advocates refunds for applications for grants, in which the application has taken longer than nine months or where applications have been stopped incorrectly.

Tackling the backlog

In a bid to tackle the backlog, in February the probate office reduced the opening hours of its telephone helpline for three months, with calls answered only from 9am to 1pm, Monday to Friday, instead of the usual 9am to 5pm — a move that practitioners say only made matters worse.

As clients continue to face severe delays, the fee for a probate application, which must be paid on estates worth more than £5,000, in May rose by 10% from £273 to £300.

The government website states that grants of probate are usually made within 16 weeks. With the recruitment of more staff, the government points to figures showing a rise in grants and fall in waiting times, while attributing the main cause of delays to missing inheritance tax information, documents and executors.