Probate delays

Recent government statistics show that the timeliness for issue of grants of representation (mean average) has progressively slipped since the pandemic. Specifically:
 

• Grants of probate (80% of all grant applications) - just under 10 weeks in the third quarter of 2019 (i.e. before COVID) to 14 weeks in the last quarter of 2023.
• Grants of letters of administration (16% of total) – about 11 weeks in the third quarter of 2019 slipping to 16-17 weeks last quarter of 2023.
• Grants of letters of administration with Will annexed (4% of total) – about 13 weeks in the third quarter of 2019 slipping to 23-24 weeks last quarter of 2023.

Find out more here.

We are definitely experiencing this in practice. Do note that the figures above are ‘mean’ averages; whilst we have on occasion been surprised by quicker time frames, this is counterbalanced by the cases which have taken longer than the average.

Two things that are not entirely clear in the figures are:

1. Do they cover all grants or are they limited to the ones issued digitally? Paper applications to the Newcastle Probate Registry are still necessary for any grants that deviate even in a minor way from the limited digital templates. From experience these paper applications are processed slower.
2. Do these time figures run from the date of submission of the application or the point when the probate registry registers the application? It seems that the probate registry also recognise a separate later date of ‘document receipt’ which is when it appears a human at the registry reviews what has been submitted and  confirms the application is in order. From our experience this ‘document receipt’ date can be as long as a month after submission of the application.  

Probable causes of delays

Based on the timeframe of the statistics discussed above, one would assume the pandemic, but that is only one, and in fact a lesser reason. Furthermore, probate registry performance had already been in steady decline before the pandemic. The primary causes are suspected to be a recent centralisation and closing of regional probate registries simultaneous to a move to digitisation of the service and a drastic loss of qualified court staff at a time when they are most needed to oversee the transition. Indeed, on 22 January 2024 the Society of Trusts and Estate Practitioners (STEP) stated:

STEP understands that at present there are only 2.6 full-time equivalent registrars and deputies, when there have previously been 30. That translates to a more than 90 per cent shortfall at a time when departures of long-serving staff have meant that the rest of the probate registry workforce requires more supervision than ever."

The matter is of national concern and consequently the House of Commons Justice Committee launched an inquiry last November (“the Inquiry”). In response, STEP surveyed its members for feedback on the impact of and potential causes of the delays. In the STEP survey results ‘Probate registry errors were revealed as a key cause of stopped, and therefore delayed, applications by 68% of respondents. Most (61%) respondents highlighted that applications were delayed still further because of a lack of senior staff to review them, particularly with complex cases.’

Impacts of delays

In the STEP survey relating to the Inquiry:

• All respondents (100%) have had a case of a cancelled house sale due to probate delays.
• 94% of respondents observed damage to the reputation of probate practitioners, as members of the public did not understand why it took so long to wind-up estates.
• 64% of respondents had seen cases of financial hardship for beneficiaries.

Furthermore, Cancer Research UK, the largest independent funder of cancer research in Europe has told the Inquiry that the situation has had a significant impact on their operations. Probate funding represents about 40% of the charity’s overall income and 50% of fundraising. Cancer Research UK’s budget forecasts do not include money currently sitting in the probate backlog, which is currently estimated to be £30m. Angela Morrison, chief operating officer for the charity said ‘there are 44 projects we could have invested in this year that we’ve not invested in. We are making day-to-day decisions based on the fact we don’t know when this money is coming.’

More information can be found here:

• Law Society Gazette - Cancer Research UK unable to fund 44 projects due to probate delays, MPs told
• STEP - Probate registry errors and inexperienced staff key causes of probate delay, STEP survey reveals
• STEP - Outsourcing could help reduce E&W probate backlogs, says STEP

Possible solutions and the path to improvement

In January, the probate registry said it expected the average wait time for grants to fall to eight weeks by March 2024. However practitioners are sceptical. Re-staffing the probate registry with experienced staff will take time. STEP’s suggestions to HM Courts & Tribunals Service (HMCTS) are:

• Outsource complex cases to a limited number of experienced law firms in an attempt to tackle the build-up of applications.
• Arrange for private practice probate practitioners to be seconded to the probate registry for a fixed period, in order to provide an instant boost to levels of expertise. They could also pass on their experience to registry staff and assist with training.
• Second probate staff to private practice law firms in order to allow them to gain experience quickly, better understand the types of issues that can arise in probate matters and learn how best to solve them.
• Change the current system of not allowing direct phone conversation between case handlers and practitioners. This system, particularly in complex and stopped cases, contributes significantly to delays and makes it harder for the probate registry to progress cases, at the same time as leading to frustration among the public.

Hopefully the conclusions of the Inquiry, when published, will include these sensible and pragmatic recommendations by STEP. If there is a funding question we hope the 10% increase in probate fees of £27 from £273 just announced will be applied exclusively to restoring the service to its previous high standards.

More information here:

• STEP - Probate fees in England and Wales to be raised, but divorce fees remain unchanged

Further information

For further information on the issues raised in this blog, please contact a member of our private client team.

about the author

Joseph is a Legal Director in the Private Client Team. He specialises in the administration of deceased persons’ estates (probate), with a particular focus on estates that are complex, which have an international element, which have become contentious (he liaises with his Dispute Resolution colleagues on the latter).