As those who have navigated the probate process will attest to, the overall time required varies enormously.
From start to completion, it is common for probate to take around 12 months, but even the smallest unforeseen hurdle can add weeks or months to this. But what causes delays in probate, and how can these be overcome?
Grant of probate delays
Only recently, the HM Courts & Tribunals Service issued a formal apology over the time it has been taking them to issue a grant of probate. Jonathan Wood, national services director, acknowledging the process has become slower, explained the reasons why. As a result of the ‘courts and tribunals reform programme’, which itself was intended to improve the probate application process, the department responsible for issuing grants hit “teething problems” with their new back-office systems. This created a large backlog in the middle of 2019, with some taking 10 – 12 weeks. In addition, the processing of a large number of applications in recent months have been delayed due to further reassurances needed before issuing a grant. In particular, missing documents and form anomalies have caused setbacks. To this end, the department has issued guidance to help reduce processing pauses, including:
• Making sure you provide the IHT form when you submit your application
• Double-checking all the names on the application form are the same as on the will, making sure you have accounted for any executors not applying
• Signing the statement of truth
• Signing the forms
• Sending the right fee
Following the above advice may save many days or weeks in the probate process. It is also likely that the new systems being implemented by the government department will, as they intend, make the procedure ‘clearer and simpler’ and reduce the amount of corrections required.
Lack of understanding of probate duties
One of the main reasons for probate taking longer than it should is inexperience and lack of understanding of the personal representative. From the perspective of the testator, it is wise to choose an individual to manage the affairs of the estate who understands what is expected of them. They should understand the steps involved and what is required of them, know the location of the Will, know how and where to access up to date information to make an inventory of the estate, and where possible start the process as soon as possible.
Executors with experience will understand some steps are dependent on others (e.g. funds from the estate cannot be distributed to beneficiaries until a Grant of Probate has been granted), and hence not make mistakes which could cause unnecessary delay. They will also be able to undertake some probate steps in parallel, including informing third-parties and creditors of the death, listing assets, contacting estate agents to prepare for the sale of the property, and instructing valuers. To this end, it is advisable to ensure the executor has a comprehensive check-list to follow, and where necessary, engages early with a probate Solicitor, either for them to complete specific tasks, or to clarify matters.
Avoiding contentious probate delays
At any point an interested party may bring an ongoing probate to a halt by bringing a contentious probate claim. Under the Civil Procedure Rules Part 57, an individual may bring an interest action (claiming an entitlement to part of the estate), challenge the validity of the Will, or a claim that the Grant (of Probate or Administration) should not have been made and should be revoked.
While it may not be possible to prevent a dispute from occurring (e.g. if the substance of the Will and the inheritance is fundamentally at odds with the expectations of an interested person or beneficiary), conflicts can be averted by being professional, honest, transparent, and engaging in regular communication with stakeholders.
From the perspective of the testator, future disputes can ultimately be avoided by ensuring they have the necessary Will advice from the outset. For example, where step-families are involved, it may be advisable to implement a Trust Will, thereby ensuring that assets are protected for the benefit of children from a previous relationship.
Balancing speed and accuracy
Delays in the probate process are not uncommon, but most can be avoided by planning ahead at the time of writing a Will. Solicitors specialising in Wills, estate planning, and probate should explain the importance of selecting an executor who is able to complete the process in accordance with the law and the wishes expressed in the Will. And while time is of the essence, speed should not come at the expense of making mistakes during probate. This will only add to the overall time taken and may lead to costly losses for beneficiaries (and personal representative if a claim is brought against them).
