Mark Walley, CEO of STEP, gave evidence at the House of Common’s Justice Committee’s evidence session on the performance of the probate service on 30 April.
The committee of MPs was established as a follow up to the Justice Committee’s written inquiry into the probate service and its poor performance in November 2023. The significant volume of critical responses to the written inquiry and the media attention that it attracted last year has compelled the government to set up the committee to investigate further.
The other witnesses on the panel were:
- Ian Bond, Chair of the Law Society’s Probate Professional User Group,
- Sophie Wales, Regulatory Policy Director of the Institute of Chartered Accountants in England and Wales (ICAEW), and
- Stephen Ward, Director of Strategy and External Relations of the Council of Licensed Conveyancers (CLC).
Has the service improved recently?
Mark explained that historically STEP members feel that the probate registry provided an exceptional service. He acknowledged that some small improvements have been made to the service, such as the reduction in time between applications being submitted and a grant being issued. However, we are still being made aware of applications that have taken up to nine months.
Does HMCTS need more staff?
The panel agreed that a lack of experienced staff has contributed to the current problems and backlog, therefore more staff are required. STEP stressed the importance of onboarding staff who have relevant practical experience. We emphasised recruiting staff with the requisite knowledge and experience, rather than simply increasing the staff level.
Was there previously too much reliance on registrars?
The witnesses agreed that registrars were an exceptionally helpful service that the probate service used to provide. Applicants were able to discuss more complex issues with registrars to resolve issues in advance of application that may cause delays. The panel agreed that there is some ambiguity in the rules. If applicants can speak to a registrar, and mitigate delays, then a more streamlined service is beneficial for everyone. Increased collaboration will speed up applications and subsequently reducing the backlog.
Would an applicant pay a pre-lodgement fee?
The majority agreed that applicants might condone a small fee if it guaranteed that the application would not be subject to any delay. Mark proposed that an alternative option would be to set up a ‘Complex Estates Team’ within the probate service with an experienced team allocated to more complicated probate applications.
How to reduce the backlog?
STEP would favour specialists being seconded into the probate service to assist in the training of registrars to handle complex cases and to clear the backlog. Ultimately, firms and the probate service would benefit from this secondment as application timeframes would decrease and HMCTS staff would mutually benefit in the long term from the specialist training.
Minimum service level?
It was proposed that HMCTS should set some minimum service standards to include:
- Publishing realistic process times;
- Providing a maximum number of ten working days to receive a response to a query;
- Enabling the ability to speak to someone who is handling your case (even if by appointment), and
- Enabling the ability to follow up an application before the current 16-week timeframe.
It was also suggested that a reimbursement of the application fee should be considered if the delay was attributed to HMCTS. An additional fee could be charged to the applicant if they are at fault and have caused the delay. Mark also requested increased transparency around published timeframes, data and delays.
What are our expectations for the future?
The panel stressed that the expected death rate will only continue to rise in the UK, putting a strain on the probate service if it is not adequately prepared. Therefore, it would be reasonable to expect the probate registry to replenish its staff numbers. Mark reinforced that the service cannot continue to exert emotional and financial strain on grieving families and HMCTS needs to plan ahead in accordance with the statistics available.
Should there be further regulation?
Witnesses agreed that there is a long-standing concern that the sector permits unqualified, uninsured and potentially incompetent individuals to operate. Will writing and estate administration should be entrusted to an experienced and qualified practitioner who has the requisite insurance in place to protect the client.
STEP will continue to consult with the probate service and provide industry feedback in order to improve its efficiency.
You can watch a recording of the session here.
Emily Deane TEP, Technical Counsel & Head of Government Affairs at STEP
