Probate changes

Online probate

• mandate the use of the online service for grants of probate applications by professional users, with exceptions for more specialised applications
• continue to allow professional user applications for grants of letters of administration to be made using either the online process or the traditional method of applying to a registry

The president of the Family Division introduced an amendment to the Non-Contentious Probate Rules and the reforms were laid in parliament on 30 September 2020.

The Non-Contentious Probate (Amendment) Rules 2020 came into force on 2 November 2020.

Read more about the update to the non-contentious probate rules

Probate delays

HMCTS has experienced delays to the probate service since 2018 when the Ministry of Justice (MoJ) proposed to increase probate fees.

The proposals led to an increase in applications following uncertainty around the suggested new fee structure.

Combined with a move to a new case data management system, this resulted in increasing delays to the probate service with members suggesting these were often going beyond eight weeks.

Delays were further exacerbated by the pandemic.

We work closely with colleagues in HMCTS, including through:

• regular probate professional user group meetings
• providing regular feedback about the probate service
• the online system

In the early stages of the pandemic, HMCTS anticipated a rise in probate applications based on a forecast of what receipts would be, and put resources in place to address this.

However, members have continued to experience issues with the online system as well as the level of service provided by HMCTS, to the detriment of their clients.

This included an unexpected loss of HMCTS staff in the summer, which impacted performance and added to the delays.

We have stated that there is a crucial need for HMCTS to have a strong workforce possessing the required knowledge and expertise in probate matters.

HMCTS has assured us that they continue to focus on getting their outstanding caseloads down and has committed to getting to the pre-COVID levels of outstanding work by mid-December. It's indicated that it’s on track to meet this.

Beyond this, its aim will be to gradually return to the normal active case load of three to four weeks intake by March 2022.

It's retraining and onboarding more staff to the probate service to help get to pre-COVID levels and to drive down the outstanding case load even further.

HMCTS has reduced its call response time to under 10 minutes and aims to maintain this level of response. It has confirmed that ‘stops’ continue to be the main issue it’s contacted about.

How you can help reduce ‘stops’

1. If inheritance tax needs to be paid, send the completed IHT400 and IHT421 forms to HMRC.
   Allow 20 working days to pass before applying for the grant on MyHMCTS – if you apply sooner, you risk a delay while HMCTS waits for the completed IHT421 to be received from HMRC
2. When applying for probate, if the will or codicil appears to have been changed or damaged, use the notes filed on MyHMCTS to let HMCTS know what has happened.
   Wills are legal documents, and damage, no matter how small, must be noted. Common types of damage include rips, tears, staple or punch holes and water damage. Noting damage on MyHMCTS can avoid unnecessary delays to the grant of applications
3. Remember that you can check the status of your application at any time using the MyHMCTS dashboard

Read the HMCTS guidance on how to check the progress of your cases

Excepted estates

On 1 January 2022, Inheritance Tax (Delivery of Accounts) (Excepted Estates) (Amendment) Regulations 2020 come into force.

The regulations change the reporting requirements for excepted estates: these are estates below the current inheritance tax (IHT) threshold.

This regulation confirms that administrators for a person domiciled in the UK with an excepted estate, who dies on or after 1 January 2022, no longer need to complete the IHT205 or IHT217 (where applicable).

Read the guidance on identifying excepted estates

Proposed probate fees increase

In September 2021, the government consulted on whether to align the fees for grants of probate to cost recovery.

The proposed changes would set a single fee of £273 for professional and non-professional probate applicants, regardless of the size of the estate.

The current fees are £155 for professional users and £215 for non-professional users.

The Ministry of Justice (MoJ) has said that the objectives of the proposal are to:

• remove the discrepancy between professional and non-professional applicants for probate
• align the fee structure with HM Treasury’s guidance on managing public money, where all users should pay the same fee for the same service
• ensure that the fee recovers the cost of delivering the probate service
• protect access to justice by ensuring that courts and tribunals are adequately resourced, while reducing the overall taxpayer subsidy for HMCTS

Our view

We support the MoJ’s overall aim to make a simpler, more streamlined process for users of the probate service and we understand that funds are needed to facilitate change and development.

We agree that probate fees should be designed to cover the cost of running and improving the service, and so welcome the departure from a policy of setting prohibitively high fees.

However, we query why government has decided to increase fees at this time.

We’ve supported the development of the online probate system and continue to work with HMCTS, through regular professional probate user group meetings, to improve the service it provides.

We note that savings and income for the court systems have already been produced by:

• court closures
• the digitisation strategy
• increased fees across various court jurisdictions

Therefore, any increase in fees now should reflect new and tangible improvements made to the service.

We’d welcome a commitment from government that the revenue raised from this proposed increase will be used to fund improvements to the probate service and not other court jurisdictions.

We’d recommend reviewing the fees in a few years, once:

• online probate is the norm across applications
• the immediate effects of the pandemic have settled

We believe that the government should implement a minimum service level standard for individual applications, whereby if the service drops below that standard on an individual application, then the application is automatically reimbursed a percentage of the fee.

We take the view that 'stop' statistics should be published (for both professional and personal applicants). This would allow HMCTS, and solicitors, to identify trends which could help with any updated guidance HMCTS issues on 'stops' in the future.

Download our response to the consultation on aligning the fees for grants of probate to cost recovery

The government response is currently with ministers. We’ll keep members updated on its progress.

Next steps

HMCTS will be updating MyHMCTS from 1 January 2022 to 12 January 2022.

During this time, HMRC asks that you avoid submitting probate applications for estates which are impacted by the new regulations.

From 12 January 2022, if you are acting for an excepted estate where the death occurred on or after 1 January 2022, you no longer need to complete and return the IHT205 form (and IHT217 if applicable) to HMCTS as part of your probate application.

Instead, MyHMCTS will ask you to confirm:

• the net value of the estate for IHT purposes
• the gross value of the estate for IHT purposes
• the net qualifying value of the estate
• if applicants are claiming the nil rate band (if the deceased had a late spouse or civil partner and the net qualifying value of the estate was between £325,000 and £625,000)

MyHMCTS will continue to request:

• the net value of the estate for probate purposes
• the gross value of the estate for probate purposes

You should continue to submit applications for deaths that occur before 1 January 2022, these will be processed as usual.

Read more information on the reduced reporting requirements for inheritance tax