Delays in the probate process are causing financial burdens for families. We look at the situation and what you can do to avoid delays.
A Grant of Representation is a legal document issued in the United Kingdom that gives the person named on it the authority to administer the estate of a deceased person. The Grant of Representation is an umbrella term for a Grant of Probate (when there is a Will) and Letters of Administration (when there is no Will). Research from probate brokers, Final Duties, has revealed that the timeline for a grant application has increased by 152% since the start of 2023, and now takes an average of 12 weeks after submitting an application for a grant being issued, which is the longest average application time frame since 2019. There are significant delays for both paper and digital applications.
Why there are delays
The delays are mainly thought to be the result of a lack of staff in His Majesty’s Courts and Tribunals Service (HMCTS), in addition to them still having to respond to a higher demand of applications following the backlog caused by the Covid pandemic. 2023 probate applications are estimated to have increased by 5% in 2023 compared to 2022, compounding the average annual increase of 3% each year since 2020.
The probate process is complicated to navigate and both communication and technical issues between clients, probate professionals and the His Majesty’s Revenue & Customs (HMRC) may further hinder the process.
Consequences of the delays
Bereaved families are suffering a significant financial burden due to the delays in the probate process, which can cause liquidity problems and the accumulation of unpaid liabilities. These liabilities may attract additional interest charges and taxes, leading to a cumulative detrimental financial consequence for beneficiaries.
The delay in obtaining a grant may cause house sales to fall through when prospective buyers are unable or unwilling to wait. Consequently, additional utility bills, maintenance charges and insurance costs can mount up, especially with vacant insurance premiums often being more costly.
Furthermore, when Inheritance tax (IHT) is owed, the first payment must be made within the first six months following the death. IHT is split into two categories:
- 1. IHT that can be paid in instalments (primarily IHT due on properties); and
- 2. IHT that cannot be paid in instalments (primarily IHT due on cash assets).
Any IHT owed on assets that cannot continue to be paid by instalments must still be paid before the six-month deadline, in addition to any previously paid instalments. Any overdue IHT will be subject to the punitive IHT interest rate, which is currently 7.75%, therefore further increasing the economic burden.
An already grieving family may suffer further distress by an increased financial burden, particularly since this situation is usually out of their control, and especially when it may attract additional taxes and punishing interest rates.
In addition, Grant of Representation delays cannot be prevented by the probate practitioners’ practices and, because most clients do not know about these matters, solicitors and other legal practitioners can appear to lack expertise and effectiveness.
Research from Final Duties suggests that the first quarter of the year is traditionally the busiest time for new probate applications. This is not surprising given that winter mortality rates are usually higher than other times of the year. Cold temperatures are known to worsen pre-existing conditions, including cardiovascular and respiratory diseases, as well as the increased likelihood of a weather-related fall or accident. Since this pattern of mortality is unlikely to change, without additional resources, the strains within the probate system will continue to exacerbate.
On a more positive note, the delays, and their impacts, have not gone unnoticed and at the end of November 2023 MPs began an inquiry into the current probate system. They will explore capacity, resources and delays across the probate service, the impact of digitisation and centralisation, and the effectiveness of the online probate portal. Therefore, the sector is hopeful that improvements will be made, although it is not expected to be a swift process.
How to avoid delays
Having a current, accurate and professionally advised Will in place usually ensures a more efficient probate process: This Will clearly states who the executors and beneficiaries are, lists the deceased assets and states how these assets are to be distributed.
When in the process of submitting a probate application, using an experienced probate professional will usually minimise any risks of complications that may result in delays.
If you would like assistance with any of these matters, including writing your Will, understanding your Inheritance Tax, or applying for a Grant of Probate, our Succession & Tax team would be happy to help.
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