SFE directors Ruth Pyatt and Michael Culver met with representatives of HMCTS to discuss SFE’s concerns regarding the online probate application process.
They also discussed concerns regarding centralisation, the current delays being experienced, the new grant of probate and the lack of sealed copy wills being provided.
Here is Michael’s report.
This is currently live for lay applicants with very straightforward applications only.
HMCTS referred to straightforward applications as the “happy pathway”. This applies when the deceased is domiciled in England and Wales, there is a will and the will is in the executors possession.
For any applications with a degree of complexity the old paper system continues to apply.
Even for those applications on the happy pathway, the original will still needs to be posted. We were told there were no immediate plans to allow applicants to scan documents in themselves or not post the original wills.
The will is now sent to a third party scanning company who have a forensic checklist they use to consider the content. Following this the original will is held in their possession for 30 days, following which, if the grant has been issued, it is stored at Iron Mountain indefinitely. Upon receipt of the will, they then scan a high definition copy of this over to HMCTS and point out any concerns they may have identified with the content of the will i.e. written amendments, only one witness etc.
HMCTS staff then review and decide if the application needs to be stopped and returned to the executor.
Whilst we were not shown an image of the scanned wills we were told it is very good quality and would easily enable HMCTS to notice a paperclip indent for example.
HMCTS can also request the original will from the scanning company if necessary.
If all is in order the grant is issued and sent to the applicant.
We were told that it is only necessary for one executor to fill in the online application but in doing so they must confirm that the other named executors have either renounced, elected to have power reserved or are joining in on the application.
If joining in, contact details for them need to be included and they will be independently notified of the application.
The executor completing the form is the only one required to sign a statement of truth. There is no need for the other executors to log in and to do the same.
The process requires the executor to input the details of the deceased and themselves and is simply an online form.
Overall it is a system which, in appearance, is very similar to the panel deputy annual reporting system and it seems very user friendly but there are no identification checks taking place at this stage so in essence anyone could be applying to extract the grant claiming to be someone else. Presumably HMCTS are happy for banks and third parties to do their own checks on the identity of the executors before releasing funds but this seems far from ideal.
Further no explanation is being given as to what legal terms such as “domicile”, “power reserved”, or “renounce” mean. This could mean lay applicants are unwittingly giving false information.
There are plans afoot to open up this system to more complex applications but this will be rolled out slowly with intestacy applications where there is a surviving spouse or children likely to come next.
Solicitors online applications
For solicitors the online system we will use is still very much in the trial phase and it was clear there is a long way to go before this will be ready to go live. Applications will be limited, to start with, to those that qualify for the “happy pathway” only.
The firm must register a “main authorised user” and then register separately all others in the firm that they wish to be able to use the system. Only the main authorised user can add or remove other users and the onus will be on the firm to keep this up to date. HMCTS will only accept notification from the main authorised user to change or add a user and an email confirmation of the change will be sent to the email address they hold on file, even if the request came from a different email account purporting to be the main authorised user.
Interestingly the trial system requires the solicitor to personally sign the statement of truth. We raised concern as to whether this would mean the solicitor is liable for the accuracy of the submission and could face liability if it later turns out that the client had provided false or inaccurate information. This is perhaps particularly likely with those carrying out “grant only” estate administration.
HMCTS were unable to reassure us on this but promised to look into it further and to report back.
As per the lay executors system it will still be necessary to post the original wills to the probate registry and we will still be required to send 2 unstapled photocopies.
There are no time frames at present for when this will be rolled out or when the system will be entirely digital but I suspect it will be many years before all applications are dealt with in this way.
As part of the roll out of the digital applications system all of the probate registries are now working to a new updated computer system and they have moved away from their previous system Probate Man. As might be expected there are inevitable teething problems and training issues ongoing with this system which is causing delay.
We were assured that applications should not be taking any longer than a month to be dealt with and the grant issued. We expressed that this isn’t currently happening and that in many cases the delay could be almost double that but HMCTS have asked for our patience whilst they adjust to the new systems. This is all well and good of course, unless you have an urgent need for the grant.
All applications are being dealt with on a date received basis and no other priority is currently being given. If an application is stopped due to an issue needing resolution, once the issue is resolved the application will be back in the queue based on the date it was then received.
This is frustrating for all involved but we were told ongoing training is happening and the probate registries hope to be back delivering Grants within a 2/3 week window very quickly.
We were told that as of today, no firm decisions have been taken on the closure of any probate registries and decisions are still to be made regarding this process. We were told that whilst Birmingham will likely be the main site there may be satellite digital sites open elsewhere.
All post will be sent to the third party scanners it seems rather than the probate registry direct.
We were reassured that the delays are purely down to the new computer system and not due to the probate registry staff being fearful for their jobs.
The New grant of probate
We were told that copies of the wills are available, for an extra fee, but are no longer part of the original grant itself. What was unclear is whether the copy will is likely to have the new holographic seal or will simply be a photocopy or stamped document.
We expressed the need for sealed copies in the terms of probate disputes or third parties requiring the same and were promised this would be looked into.
For those in any doubt however it would be wise to carry out a standing search to ensure the will you are being presented with was indeed the document sent to the probate registry.
We were encouraged to keep in contact and to continue to feed back any issues or concerns our members are experiencing and please do continue to let us know your experiences and in particular any examples of delays or issues you come across as we hope to help HMCTS to implement a more robust system than currently on the table.
(Author: Michael Culver)