Backlogs for bereaved families: The consequences of the ongoing probate delays

Data released from HM Courts & Tribunals Service (“HMCTS”) for the quarter from January 2023 to March 2023 reports that a paper application for a Grant of Representation (the umbrella term for a Grant of Probate (where there is a Will) and Letters of Administration (where someone dies without leaving a Will) is taking an average of 16 weeks from submission of the application to issue of the Grant.

For a digital application, the average wait time is 8.4 weeks. For stopped digital applications, the average wait time is 18.6 weeks. In June 2023 HMCTS data shows that 24,329 applications for a Grant were received with an average wait time of 13.9 weeks from submission to issue which is double the 6.3 week wait time in July 2022. The average for a stopped paper application was 28.8 weeks.

Bereaved families and Personal Representatives (executor or administrator) across England and Wales continue to face delays when applying for a Grant of Representation which impacts the length of time spent dealing with the administration of an estate, and anyone trying to contact the Probate Registry will be all too familiar with the request that you must wait 16 weeks before you can get an update on the application.

Often an estate will comprise of a property or financial assets which cannot be sold or encashed without a Grant. Often the property will be in the process of sale, but any sale cannot complete until the Grant is issued. This is causing sales to fall through, a risk that financial assets may lose value due to market valuations, and unfortunately for Personal Representatives there is not much they can do.

On 6 April 2009 the Government increased a person’s inheritance tax threshold to £325,000. That threshold has been frozen until 2028, and as a result more and more estates are being caught with an inheritance tax liability.

Often assets need to be sold to be able to pay the liability as Personal Representatives have only six months from the end of the month in which the deceased died to pay that tax.

If the estate does not have sufficient financial assets to pay the inheritance tax liability, then Personal Representatives may need to sell the property or other assets which require the Grant before they can be sold.

As a result, it is unlikely that Personal Representatives will have enough time to obtain all the information to submit an inheritance tax account and have the Grant issued to authorise completion of the sale of the property within the six month timeframe.

Therefore, Personal Representatives are having to look at other ways to fund this liability including insurance policies, loans or to accept that interest will have to be paid on any unpaid inheritance tax until the liability is settled.

As we have seen a sharp rise in interest rates, with the current rate of interest being 7.75%, this can result in the estate paying significant interest which will further reduce down the value of the estate which will ultimately pass to the beneficiaries.

In an ever-increasing litigious market, beneficiaries are considering their options and as a result, the legal sector are seeing more disputes arise where beneficiaries are questioning the actions of the Personal Representative and seeking advice about making a claim against the estate for financial hardship.

This can bring anxiety for the Personal Representatives and any such action will increase the expenses incurred in the administration of the estate and can delay the administration process further at an already difficult time.