Severe delays that currently see clients being advised that probate will take at least nine months, will not improve without adequate resources, says CILEX (the Chartered Institute of Legal Executives).
The waiting time for probate almost doubled from April 2022 to April 2023, with CILEX members reporting a negative impact on their bereaved clients, with the extra stress caused compounded by financial problems stemming from the delays.
Responding to a call for evidence by the Justice Select Committee, which has launched a parliamentary inquiry into the issue, CILEX reports its members “do not believe the Probate Service has the necessary resources, capabilities, or expertise to process applications for probate, including complex probate, in a timely manner”.
CILEX, which has over 2,200 members working in private client, reports clients are experiencing additional stress at an already difficult time and their lawyers are also under pressure given the understandable complaints and scrutiny from clients frustrated by the process. CILEX says this “negatively affected the perception of lawyers’ competency and their professional relationship with clients”. Of the 189 CILEX practitioners surveyed, 61% did not believe beneficiaries, executors and the bereaved are protected and supported through the probate process.
Property sales in particular are being affected, with purchases falling through because of the wait to obtain a grant. Many clients are therefore unable to access the funds they need, with a knock-on effect on lawyers’ ability to charge their fees. Of the CILEX private client lawyers surveyed, 65% believed staff resourcing would improve the situation, highlighting an urgent need for staff with “the technical and legal knowledge to deal with complex applications, stops and enquiries”.
Members also highlighted the problems caused by a lack of updates on applications, with CILEX’s response recommending improved communications, streamlined procedures for straightforward applications and “a facility for users to not only track progress but also make enquiries online”.
The possibility of the reopening of district probate registries, “equipped with qualified and knowledgeable staff” was highlighted by some respondents, who suggested this would assist with capacity issues and allow for more direct contact. Other recommendations include pre-screening applications, widening online application services with options for different types of applications (instead of a “one size fits all” approach) as well as more prompts, clearer guidance, and the ability to raise enquiries and receive updates about stopped cases via the online application system.
Only 38% actively supported the premise that technological development and innovation could improve the Probate Service, although they recognised the potential benefits. CILEX’s response states that “without effective implementation, which includes the right level of staff to support an online system, it is not certain that technology improves the process”. CILEX president Emma Davies commented:
“The ongoing delays in the Probate Service are having a considerable impact on CILEX lawyers and their bereaved clients, causing stress and anxiety at an already difficult time in their lives. While the use of technology and streamlining of the process would be potentially useful, it is a lack of adequate staffing that is at the heart of the problem.
The Probate Service needs sufficient staff with the capacity, training and experience to handle complex cases, to deal with stopped applications and respond effectively to enquiries. Without adequate resources, it is unlikely we will see any improvements in waiting times for probate any time soon.”
STEP attributes these delays primarily to a workforce inexperienced in handling such matters. The professional group points out that the departure of seasoned staff from probate registries has coincided with a rise in errors and prolonged waiting periods, especially in more complex cases. The society observed a significant uptick in errors like misspellings and omissions in probate grants, including missing executor names. In a submission to a Justice Committee inquiry, they recommended that the HM Courts & Tribunals Service (HMCTS) consider outsourcing intricate cases to expert law firms to help alleviate the backlog.
Emily Deane of STEP expressed concern over the impact of these delays, noting that they have led to failed house sales and forced some to resort to loans for paying inheritance tax, which is due before the grant of probate.
The Justice Committee initiated an inquiry into these probate delays last November, revealing through a STEP survey that all probate practitioners had experienced house sales cancellations due to these setbacks. What’s more, 67% reported application halts due to registry errors.
Data from HMCTS shows that “stopped” applications, typically complex ones, are taking about 24 weeks to complete. The probate registry’s email response system for these applications further adds to the delays, potentially extending the wait by several months.
STEP also pointed out that the transition to online probate services in 2019 resulted in the departure of many senior staff members, exacerbating the issue. The current probate registry workforce is significantly reduced compared to pre-pandemic levels. They also noted that recent limited remote working policies post-pandemic have not contributed significantly to these delays.
In response to these challenges, STEP suggests that HMCTS should not only outsource complex cases but also focus on recruiting and adequately training more experienced staff to achieve a more efficient 28-day processing target.