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Don’t add to the probate backlog headaches

The phrase better late than never certainly applies to the probate process at present, writes Fiona Mainwaring, a leading expert in wills and probate at ORJ Law.

Latest figures released this week from HM Courts & Tribunals Service (HMCTS) showed the average waiting time for probate applications to be granted issue after submission now sits at nearly 14 weeks.

The backlog first created by Covid shows no sign of abating, not least because a new digitalised system has taken longer to bed in than first expected.

Delays in the probate process can bring frustration and upset at what is already an emotionally challenging time following the death of a loved one.

Probate enables the legal and financial process of finalising someone’s estate, including selling or disposing of property and possessions and realising assets such as bank accounts shares and pensions.

Probate can vary from case to case, but it begins with the registration of death at the local register office. This should happen within five days in England or Wales or eight days in Scotland.

The estate is then valued by calculating the worth of all assets, including any outstanding debts and lifetime gifts.

Next, inheritance tax is calculated and paid. This is nil-rate up to £325,000 and 40% thereafter. Less inheritance tax is due when property is left to a family member. If inheritance tax isn’t paid within six months then interest starts to accrue.

Once the estate has been valued and tax settled, an application for probate can be made by submitting the necessary documents, either online or by hard copy.

As well as the current backlog in probate, additional delays can occur for a host of other reasons, such as damaged paperwork, a contested will, the death of an executor or complicated wills.

The impacts of these delays can have real-life consequences and can leave people feeling in limbo. For example, if a surviving spouse needs to go into care, the finances might not be in place to support them. Property cannot be sold and debts cannot be settled, which could lead to further interest being accrued. Vacant properties may also require special insurance coverage and additional maintenance.

Perhaps most significantly, after six months, HMRC applies interest to any inheritance tax.

While there is nothing any individual applying for probate can do about the current backlog, a careful approach to completing paperwork can help avoid any additional unwanted hitches.

Errors on forms are the number one cause of delays. If there are any mistakes, then a stop can be put on a probate application and it can be a month before the executor is even informed.

It is, therefore, vital that all documents are submitted accurately. Working with a solicitor can help ensure that is the case.

I am often asked if payment can be made to fast-track the process, but this is not an option.

The documents required depending on whether this is a personal application or through a solicitor are:

  • A copy of the death certificate
  • The original last Will and Testament
  • Inheritance Tax form
  • Proof of assets and liabilities
  • Property valuation
  • Statement of truth

For any queries on wills and probate, contact Fiona Mainwaring fiona.mainwaring@orj.co.uk or call 01785 223440.