By Ian Bond, Partner at Irwin Mitchell
Ian specialises in trust formation and administration, wealth succession, and estate planning at Irwin Mitchell. He has wide ranging experience dealing with the administration of high value and complex estates, especially intestacy matters. He is the former chair of the Law Society’s Wills and Equity Committee; contributor to the Law Society publication The Probate Practitioners Handbook (9th edition); and has written a number of articles on various private client subjects for both legal and non-legal publications.
Please note that this article was submitted in December 2023 and there may be further updates by the time of publication.
All professionals dealing with the issuing of Grants of Representation from the Probate Registry will be aware that HMCTS is suffering from
delays. Data on the performance of the Probate Registry on receiving and issuing Grants of Representation is published regularly on the GOV.UK website and it doesn’t make for happy reading.
The waiting time for Grants to be issued almost doubled over the last 12 months, with many practitioners reporting cases of Grant applications taking more than ten months to issue. HMCTS is advising practitioners not to chase applications until 16 weeks have passed from the date of submission, and practitioners are routinely advising clients that a Grant will take at least six months.
There are times when the Personal Representatives (PRs) of an estate cannot wait for six months for a Grant to be issued. Firstly, this article looks at how to get urgent matters attended to at HMCTS, and secondly, what is happening to resolve the issues at the Probate Service, which predate Covid and now enter another year of delay.
The Non-Contentious Probate Rules 1987 allows HMCTS the power to issue a Grant of Representation limited either by subject matter or time. A Grant of Administration ad colligenda bona defuncti or “Grant ACB” (literally, collecting the goods of the Deceased, a collection Grant) is one specific type of limited Grant.
A Grant ACB is applicable where there is difficulty making an application for a full Grant to the estate because: there is doubt as to the identity of the Personal Representative; the proposed PR is unable to act; or the full value of the estate cannot be ascertained.
Typically, you would apply for a Grant ACB where there is an urgent need to act to prevent loss occurring to the Deceased’s estate. An example of this could be where the Deceased was selling a property and contracts for sale were exchanged before death and a date agreed for completion to take place. In this case, a Grant ACB can be obtained by the PRs so the sale can be completed.
Note that applications for a Grant ACB are not a shortcut and involve more steps than an application for a full Grant. HMCTS will seek to assist practitioners with genuine Grants ACB so that the risk of potential loss to a Deceased’s estate is minimised. The Probate Professional Users Group has worked with HMCTS to issue guidance on Grant ACB process, which should be available on GOV.UK by the time of reading.
Where the PRs of a Deceased’s estate face circumstances requiring urgent action that necessitates a Grant application and all the information is available for a full Grant application to be made, then an expedited Grant application should be made rather than an application for a Grant ACB.
At present, HMCTS is not lending itself to a timely and expeditious disposal of all applications. However, in circumstances which require a genuinely urgent Grant application to be processed, then it will seek to assist. There is an expedited Grant application process, which again has received the input of the Probate Professional Users Group. This is being looked at separately and HMCTS intend to issue guidance to HMCTS users on this.
Whilst HMCTS is working to deliver on urgent applications for Grants, work continues to reduce the delays and to improve the process for all Grant applications.
Practitioners will have noted that the Ministry of Justice issued a consultation in November 2023 on the fee structure used in HMCTS across a range of services, including the Probate Registry. This was intended to seek views on a 10% increase to fees in Spring 2024 – roughly in line with the rise in the consumer price index (CPI) since fees were last reviewed – and to make the review process take place automatically every two years after that.
The proposed Grant Application fee increase is from the current £273 to £300. Many practitioners will be disappointed by the fee increase given the much-documented problems at the Probate Registry and many will fail to recognise the executive summary description of “… world-renowned services to the public”.
The Law Society responded to the consultation as a whole and, in regard to Probate Service fees, requested that the government should implement a minimum service level standard for individual Grant applications, whereby if the service drops below that standard on any individual Grant application, then that Grant application fee is automatically reimbursed a percentage of the fee.
At the same time the fees consultation was launched, The House of Commons Justice Committee launched an inquiry into the Probate Service amid concerns over delays in processing applications.
The cross-party committee of MPs will take evidence on capacity, resources, and delays across the probate service, the impact of digitisation, centralisation, and innovation, including the effectiveness of the online probate portal, MyHMCTS.
In summer 2023, The Law Society surveyed over 700 Solicitors who have used the MyHMCTS portals and, despite the good intentions of HMCTS to modernise the probate process through technology, the research found that the new systems were not efficient and effective in delivering the service.
The inquiry will examine people’s experiences of applying for probate, including how effectively beneficiaries, Executors, and the bereaved are supported through the process and protected from rogue traders. It will also analyse performance data relating to the Probate Registry. Key questions have been published focusing on different areas:
Capacity, resources, and delays;
Performance measurement and data;
Technological change and innovation;
People’s experience of probate; and
Fees and thresholds.
The Justice Committee invited written submissions by 22 January 2024 addressing any of the above points. The Law Society used its research over the summer of 2023 as the basis of its response.
Fingers crossed we might see some change for the better at the Probate Registry in 2024.
This article is featured in the winter 2024 edition of our quarterly news digest, Entitlement. Click the image below to download your free copy of Entitlement for more informative articles.