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Delays in the UK’s probate system are causing significant problems for grieving relatives.
Families are facing increasing inheritance tax bills and risking property sales falling through because of the current slowdown.
A lack of staff and a backlog of cases, especially following the Covid-19 pandemic, have seen the typical wait time for granting probate doubling between April 2022 and April 2023 - even leading to a Parliamentary inquiry in November 2023.
More recently, staff operating the HM Courts & Tribunals Service (HMCTS) probate helpline have temporarily reduced their operating hours in the hope of freeing up time to deal with outstanding applications.
But experts say there are steps that families can take to reduce the chance of delays, as well as finding ways to minimise their impact.
Probate is the legal process of dealing with a deceased person’s estate, including their property and assets, explains Karen Barrett, founder and chief executive of Unbiased, the independent financial adviser network.
In many cases, probate needs to be officially granted before the executors of a deceased person’s estate can share out or sell their assets.
“It’s a vital process as it confirms who can administer their estate and whether the will is valid. This involves identifying the deceased’s estate value by examining their assets and liabilities, as well as confirming any beneficiaries,” she says.
One of the most important aspects of the process relates to inheritance tax (IHT), which is currently charged at 40% of any part of an estate exceeding £325,000.
If there is any IHT due on an estate, it will need to be paid to HMRC six months after the end of the month the individual died.
The system for dealing with probate has changed recently – but not for the better. Helen Stewart, head of probate at law firm Thomson Snell & Passmore, explains:
“Applications are now handled centrally, whereas previously they were submitted to a District [local] Probate Registry and were handled by experienced members of staff who were able to answer technical queries on complex applications.”
“Their advice enabled applications to be processed efficiently and grants to be issued promptly. As widely reported in the press, the new system led to substantial backlogs at the Probate Registry, but it appears that they have now amended their internal processes and we are hoping to see the delays reducing substantially in 2024.”
However, Stewart says that families should still expect probate applications to take “months rather than weeks” until the backlog is cleared.
Perhaps the most serious problem caused by probate delays relates to property sales.
At least some of the IHT due on the estate needs to be paid before probate is granted. However, the deceased person’s property and other assets cannot be sold until probate is obtained, causing something of a catch-22 situation.
“If the estate executors don’t pay any IHT due within six months of their loved one’s death, HMRC charges interest,” explains Barrett. This is currently levied at an annual rate of 7.75%.
“To avoid this, some people take out a loan – and eventually use inherited assets to pay this back – or use their own savings to pay the IHT bill.”
The longer it takes to sell the property, however, the more interest will accrue, whether it’s on the HMRC account or a short-term loan.
“Other impacts include lost house sales,” adds Stewart. “In addition, the estate has to continue to pay interest on any mortgage, as well as having to continue to pay for the upkeep of the house while it is waiting to be sold.”
According to HMCTS, some of the most common reasons for applications being held up include a lack of correct documentation, case handlers needing more information about the signing of the will, and incorrect inheritance tax figures being stated.
To avoid delays, Stewart says it vital you provide the right documentation.
“[What's needed] will depend on the details of the estate, but possibly a full IHT return (IHT400) and definitely the probate application (either PA1P if there is a will, or PA1A if not) as well as a copy of the death certificate issued by the registrar.
“In addition, the original will (where there is one) needs to be sent with the application,” she adds.
If you are thinking of handling the process yourself, then there’s good guidance on Gov.uk or Citizens’ Advice if you want to understand the process you’ll be undertaking.
“In particular, personal representatives [those allowed to administer the estate of the person who has died] should be careful not to enter into any agreements for which they need a grant of probate,” says Stewart.
"For example, it’s fine to market a property, but you can’t agree a sale until you have the grant. It’s also important to bear in mind the deadlines and start working out any tax due at an early stage.”
Another option is to hire a specialist solicitor to manage the process, if you're not sure you’ve got all the right information and would rather someone take you through the whole process.
Alternatively, they can just apply for the grant of probate on your behalf to make sure everything is submitted correctly if you’re only worried about that part.
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