WHAT IS PROBATE AND WHY DO I NEED IT?
Probate is officially described as “the official proving of a Will”, but what does that mean? In simple terms, a Grant of Probate is the legal document which gives the executor(s) the legal right to deal with the deceased’s estate (their property, money and other possessions). Although it may be possible to cash in some assets before a Grant of Probate is issued, if the deceased held a lot of money with one bank or if they owned property, you will likely not be able to close those accounts and will not be able to sell their property until the Grant has been issued.
HOW DO I GET A GRANT OF PROBATE?
The process depends largely on when the deceased died and what assets they had. The process begins by collating details of the assets and liabilities of the deceased and providing HMRC and/or the Probate Registry with details of the same. Payment of any Inheritance Tax due is paid (or arrangements put in place if there are insufficient cash assets) before the Grant is issued by the Probate Registry.
PROBLEMS
That sounds simple enough but in reality things are not that straight forward, as a practitioner involved in this process on a daily basis, I can confirm that most estates do not sail through this easily.
Preparing the actual application is usually straight forward, I know which forms I need to use and what information I need to report to the registry, it’s my job to know that however, once the application has been signed by the executors and sent to the Probate Registry I have no control.
The Probate Registry tell us that a Grant of Probate will take 16 weeks to issue from receipt. In fact, they will not speak to us about an application until 16 weeks have passed (I ensure that I set a reminder in my diary for 16 weeks from the date I send an application!). When the 16 weeks have passed and you, eventually, get through to them, they will only speak to you about 2 cases per telephone call and the most they can do is expedite the matter their end. What this actually means is that they will note the file that you have called and the case will be put into a queue to be dealt with alongside all of the other matters that have passed the 16 week timescale.
From an estate point of view, this delay can result in house sales falling through and interest on Inheritance Tax payments increasing. There may also be Capital Gains Tax implications which arise if an asset increases in value significantly before it can be transferred. This causes families and executors additional cost, stress and upset through no fault of their own.
We are also finding that some beneficiaries are dying before we are ready to make payment of their gifts which causes additional delay in administration of the estate as steps need to be taken to discover whether or not the deceased beneficiary left a Will to enable the gift to be redirected to the correct new beneficiary.
WHY?
Before the pandemic, straight forward Grants were being issued in around two weeks. Furlough and the increase in deaths put an increased strain on the Probate Registry and they do not seem to have recovered from this. We are finding that there are less experienced staff dealing with the “straight forward” applications and if they don’t fit exactly with the “checklist” they have been trained with they are stopped and added to the work of the more experienced staff at the Probate Registry.
If more information is needed on an application, an email will be sent but, when this is answered the case goes back into a queue. Recently we were told that once the additional information was received, the Grant would be issued, 2 months on and we are still chasing the Grant.
Steps have been taken to move a lot of applications online to speed things up, but there are still some applications where a paper application is required. The delay on paper applications is significantly longer than the delay on online ones.
MOVING FORWARD
Recently the Probate Registry announced that they would be closing their phonelines each afternoon to enable them to concentrate on their backlog. We are now a few weeks into this and have seen a few Grants arrive back at the office however, these seem to be more ones we have chased rather than more recent applications.
We are hopeful that the online system will be changed to allow more complex applications to be made online to reduce the amount of paper applications moving forward and hope that the experience the less experienced case workers are getting increases to enable them to deal with new applications more efficiently.
OUR ADVICE
Don’t expect a Grant of Probate to be issued within 16 weeks of your application.
Where possible, ask the bank to pay the funeral costs – they can do this directly before a Grant is issued.
If Inheritance Tax is due, ask the bank to pay as much as possible to avoid any interest charges.
If you are able, arrange for any assets which may increase significantly in value to be appropriated to beneficiaries to avoid any potential Capital Gains Tax.
Take the stress away by instructing a specialist Private Client Solicitor to handle the administration of the estate on your behalf.