Long probate delays causing stress to grieving families, lawyers warn

Probate delays are causing stress, disruption and emotional anguish to bereaved families trying to unlock loved ones’ finances, warn lawyers.

Applying for probate is a vital step to gain control over an estate after someone dies, and law firms say house sales can collapse and investments turn volatile during the process, piling pressure on waiting families.

Accessing bank accounts, settlement of debts and sorting out bequests can also go on hold for months, they say.

The probate service is run by HM Courts and Tribunals Service, although controversially some work such as scanning wills has been outsourced.

The latest official figures reveal the average wait time for both paper and digital applications from submission to granting of probate was 10.6 weeks in February, down from 11 weeks the previous month.

Carrying out the whole process online is quicker at 7.5 weeks, down from 8.4 weeks in January.

But lawyers report seeing probate delays of five or six months, and one says she is struggling to sort out a complicated case which has been stuck in the probate process for a year so far.

> How to avoid probate delays: Find tips on pre-empting common problems below

Lengthy delays ‘exhausting for grieving families’

‘Pre-Covid, if probate had not been granted, we would follow up with HMCTS after just 10 days,’ says Fiona Dodd, private client partner at law firm Mayo Wynne Baxter.

‘However, now, there is a 16-week purdah in place where we are unable to chase the registry to find out what is happening with an application.’

She says probate delays are causing ‘huge disruption and emotional anguish to bereaved families’, with queues at the courts leaving buyers walking out on house sales and investments losing value during stock market volatility since the war in Ukraine.

‘These lengthy delays are exhausting for grieving families, who are already going through a difficult time dealing with their loss and trying to sort out the complex admin related to the death of a loved one. They are being left in limbo.’

Dodd also says: ‘It is basically a waiting game – there is no shortcut or way to avoid the delays when applying for grant of probate. 

‘Despite these types of applications being daily bread and butter for probate practitioners, legal teams up and down the country are experiencing the same problem.’

She adds: ‘In the past few months, we’ve seen clients losing out on property sales as buyers have been unwilling to put up with the long wait times for a grant of probate to be issued.’

Lawyers and licensed probate firms ‘should be trusted to scan wills’

Jade Gani, chief executive of Circe Law and a director of Solicitors for the Elderly, told us: ‘I have one matter outstanding for a year, that is a complicated matter. We have chased and chased and I have even swapped firms and I’m still chasing it.’

She says probate used to be granted in two weeks or even a week, but the average wait she sees is now 20 weeks which is ‘tremendously stressful’ for families.

Jade Gani: She reports seeing an average wait time of 20 weeks for probate, which is ‘tremendously stressful’ for families

Gani says delays are often caused by ‘stops’ in the process caused by human error and something getting missed when wills are scanned.

She believes if the Government wants to save money on scanning of wills and do it more efficiently, it should create a ‘green list’ of lawyers and licensed probate specialist firms who are permitted to upload the documents.

Ben Bell, government affairs manager at the STEP body of inheritance professionals, says: ‘Probate delays can be extremely stressful for grieving families who may be relying on probate to be granted to access funds, dividends, rental income or to sell a home left to them by someone who has passed away.

‘In some more complex cases, grieving families are waiting up to six months for probate to be granted and this is causing serious financial struggles.

‘HM Courts and Tribunal Service is reforming how professional users can apply for probate, including improvements to response times.

‘STEP welcomes the additional resource allocated to HMCTS staffing levels but it is concerning that improvements to probate service timeframes are not yet coming through, causing unnecessary frustration and distress.’

Calls to probate service can be ‘put on hold for 45 minutes to an hour’

Jo Summers, partner with law firm Jurit and a member of STEP, says: ‘It’s clear that HMCTS have been trying to do what they can, bringing in and training additional staff.

‘However, we are still seeing lengthy delays, particularly for any applications that cannot be done online.

‘It is also a struggle to get through to the probate registry and being put on hold for 45 minutes to an hour is not unusual. Understandably, grieving families are frustrated with the whole system. They do not need the added distress caused by these delays.’

Summers says you can act in advance to avoid your loved ones waiting months for funds to come through after probate, and one option is to nominate to whom your insurance policies or death benefit payments should be passed.

‘This makes it clear who should receive those funds and probate is not needed, since the funds pass directly from the insurance company.’

Summers adds you can consider a joint bank account, because it is not frozen when one of the account holders dies.

‘When a person dies, any sole accounts in their name are frozen. The account may still receive payments, for example, dividends or rental payments, but family members are unable to access those funds until probate is granted.’

What does the Government say?

Monthly figures on probate wait times are published here, and see the box on the right for the trends over the past year.

However, HM Courts and Tribunals Service points out that the wait time in the three months to December – bringing together an average over more months – was lower at seven weeks.

‘The death rate has been considerably higher since 2020 causing a surge in probate applications but the vast majority of applications are dealt with within seven weeks on average – almost one week quicker than a year ago – and we have hired more staff to meet rising demand,’ says a spokesperson.

More than 90 per cent of probate applications are completed digitally, which is faster than doing it on paper. Meanwhile, probate cannot be granted until inheritance tax is settled with HMRC, which can also cause delays.

Waiting times information includes applications which have had to be stopped due to errors on the form or missing documents such as the inheritance tax form or the original will.

How to avoid probate delays 

If you’re handling the probate process yourself, then Solicitors for the Elderly chair Michael Culver suggests the following tips to pre-empt some of the common problems.

1. If in doubt, seek out an SFE member to review your application before you submit it. Many of our members will happily review and feedback on any changes required for an agreed fixed fee.

If applying online, you can share your password and log-in details with your solicitor, but usually it will send a code to your email so it’s best to do it in the same room where possible, or over the phone.

We’d recommend getting in touch with a lawyer for a fixed fee meeting in the office. We’d ask someone to bring all of their paperwork and log in details ready to review the online application together before making the submission.

Michael Culver: Lengthy delays can be exhausting for grieving families already managing the distress of losing a loved one

In central London you might pay around £300 for a fixed fee one-hour meeting to review the online probate application, but this is assuming there’s no inheritance tax payable.

If there are inheritance tax forms to check, it wouldn’t be a fixed fee as it would likely take three to four hours of additional work and the total could be closer to £1,000.

This will differ per region and per firm.

2. If tax is payable wait 25 working days from sending the inheritance tax paperwork to HMRC before applying for probate.

This is recommended even if HMRC have confirmed receipt of the paperwork in the meantime, in order to give them time to share the paperwork with the tax service.

The lack of a response from HMRC is one of the main causes for an application being stopped.

3. Ensure all names match those within the will or explain why if there is a difference.

4. Explain why one executor isn’t applying for the grant if appropriate.

5. Ensure all documents including the original will are included when sending documents to HMCTS.

6. If there is no will, make sure you explain why you are entitled to apply for the grant.