Are you dealing with the loss of someone you love whilst being responsible for ensuring that their wishes are carried out, even if that means you may be personally out of pocket because of current probate delays?

June 13, 2024

Bates Wells & Braithwaite Head of Private Client Zoe Southgate explores the challenges around current delays in the probate process

Let us start with what is “probate”?
Probate is the legal right to deal with someone’s property, money and possessions (their ‘estate’) when they die. It is sometimes needed to access bank accounts, sell assets and settle debts after someone has died. If there is a will, you may need the document known as grant of probate in order to prove that you have the right to deal with assets like bank accounts, property, shares, pensions and life insurance policies.

When is probate required?
Probate is usually not required on estates of less than £10,000 or if all assets are jointly owned. Current statistics suggest that this covers about 50% of deaths.
However, for the remaining 50% of grieving families, going through the probate process is not only a daunting prospect but currently because of chronic delays in the probate system, it is positively frightening. This is especially the case for dependents of the deceased who relied on them for financial support. After a death, the deceased’s bank accounts and assets are frozen. Their home, if not jointly owned, cannot be sold. To access these assets, a grant of probate is required which means going through the probate process
What is currently happening with the probate process?
You may have read in the media that there are currently significant delays to the probate service caused by a number of factors which include moving the process online, replacing regional offices with a single central office and the impact on the retention of skilled staff because of COVID and the trend of working from home.  Whatever the reason, these significant delays are putting added pressure on those nominated by the deceased to execute their final wishes.
Back in 2016 it was recorded that probate applications took on average seven to 10 working days to process. Most recent data show delays of more than 13 weeks and perhaps most alarming is the fact that cases taking more than six months for an application to be approved has doubled in the past three years. The problem with this last statistic is that Inheritance tax (IHT) has to be paid within six months of a death or relatives are charged interest. Not receiving a grant of probate within a reasonable timeframe means that a significant number of families are faced with paying IHT out of their own pockets. And these are not necessarily wealthy families; anyone who is a homeowner these days without joint ownership will probably be subject to IHT. There are also costs such as insuring an unoccupied property and ongoing utility bills. The Government is aware of the situation and there is a Justice Committee’s inquiry into the delays faced by users of the Probate Courts (HMCTS); however, all has been halted by the General Election.

What can you do to avoid being caught up in the probate process?
Probate Service has cited that the main causes for delay have been missing inheritance tax information or miscalculations, incorrectly completed application documents and case handlers needing more information about the signing of the will.  It has also been noted that damaged wills or issues around handwritten amendments have contributed to delays. There is help online for those going through the process on their own but it may be worth recognising  that experience can help  reduce the risk of administrative errors and avoid costly hold-ups such as failed property sales and higher inheritance tax bills.

If I and my team can help you to navigate the probate process, contact me on 01473 219282 or at  zoe.southgate@bates-wells.co.uk

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