As I’m sure all Wills & Probate practitioners will agree, the last few months have been a challenge. March saw a huge demand for Wills from clients, by both those who were half-way through arranging one and those who had kept meaning to get around to it.
Initial instructions have in some cases had to be taken over the phone, by letter or by video, leading to many of us becoming experts on Teams/Skype/Zoom/Facetime/What’s App !
Lockdown itself obviously came with its own difficulties in trying to help clients, with local firms taking a variety of measures to ensure clients affairs were put in order as far as possible.
From signings in gardens, car parks, and through windows, to meetings held in full PPE, practitioners have done their best to accommodate.
The introduction of emergency legislation in September to allow video signings, was welcomed by some, but we should look at this option only as a last resort. Cases of contentious probate have risen rapidly over the last few years and the difficulties we currently face will do nothing to stop this. Whilst video signings may seem like an expedient measure at present, we should not forget that as a witness to a Will signing, practitioners may be expected to provide evidence of the circumstances of the signing at a later date. A video is no substitute for a face to face meeting, and practitioners will know that much can be learned from a client’s body language and non-verbal cues, and neither these nor evidence of the presence of others is so clear over video.
The increase in demand for Wills and the sobering increase in deaths as a result of coronavirus were both a challenge in themselves, but alongside this, HMCTS chose this time to push ahead with major reform to the probate procedure.
Again Wills & Probate practitioners will be well aware of the difficulties caused over the last eighteen months by the centralisation program of the HMCTS probate service, with most local probate registries closing and a large part of the work being outsourced to bulk scanning companies, and the subsequent delays and errors this has generated.
Nevertheless in March the Probate Registry introduced a new set of forms for use by both the profession and for personal applications, replacing the Statement of Truth in solicitor applications. This resulted in many cases in removing some of the benefits of a professional application.
The idea behind this seems to have been to make professionals use the online portal introduced last year and HMCTS have now said that all solicitor’s applications will have to be made through the portal.
The Law Society have been vociferous in requesting this is only made mandatory when the portal can deal with all types of application, as it can currently only deal with relatively straightforward cases, and even with those there have been a lot of teething problems. In some cases just logging on is an issue and applications frequently can appear to have disappeared, in addition the questions on the application itself are often not clear.
In one particularly frustrating instance an application had not been progressed because HMCTS had entered it on to their system twice, and on realising their mistake deleted one, which then showed as the application having been withdrawn.
This has led as you would expect to more delays, even though it was reported that fewer applications than usual were received during lockdown. This was put down to solicitors not being able to access original Wills, but this was not my experience with local firms seeming to be well able to rise to the challenge.
The incidences of delays, errors and problems arising from the new systems are multiple and varied, with not many signs of improvement yet. We have come across Grant’s issued in the wrong name, inexperienced staff on the phones, staff not being able to see all parts of the application submitted, to name a few.
Having said that, we do all need to try our hardest to make it work and I am aware HMCTS are working to resolve the difficulties and I have seen some grants and correspondence being issued at the weekend.
HMCTS have also updated some useful FAQs which are constantly being updated and it is worth reading those too. These don’t seem to have been posted directly on to the internet, just emailed out to some practitioners, but if anyone would like a copy please contact me.
You can also enter a Caveat on the new portal and I have to say the procedure for entering that is incredibly quick and easy, so there are benefits.
In addition to the FAQs, HMCTS are also requesting (constructive!) feedback on the portal, so in all our interests any helpful comments or suggestions and explanations of problems encountered should be fed back to them at:
probatefeedback@Justice.gov.uk
For further information on how to apply online please use the following link: –
https://www.gov.uk/guidance/hmcts-online-services-for-legal-professionals
The portal does rely on you also having set up a payment by account (PBA) account first, rather than sending cheques in and once set up, this does make life a bit easier.
For further information on how to set up a PBA account (if your firm does not already have one for family and civil matters please use the following link: –
HMRC on the other hand seems to have responded to the current situation very quickly and effectively. They now no longer issue cheques, but simply sending your firm’s bank details on letterheaded note paper and heading it “Repayment – Further Details” seems to have resulted in quicker refunds.
Previously the IHT421 was sent to HMRC for them to receipt and return for us to then send it with the probate application. Now, HMRC email this direct to HMCTS, in many cases within two weeks of receipt, but a common source of frustration is the IHT421 not being matched up with the probate application.
I have suggested to HMRC we include the probate reference number in the correspondence sending the IHT421 to them, and they have said so long as we ask in the letter that they quote this reference when sending the IHT421 on, they will do so.
I have set out below a few pointers for the portal which I hope are useful:
- Make sure you are using the right web browser to access the portal – this may mean swapping form your existing one to Chrome or Firefox
- Keep a record of the reference number the portal generates at the outset as ongoing applications sometimes appear to be “lost” but searching by reference number may be enough to locate the application.
- Make sure you put the clients’ name or matter number on the reference as this will be the only way to match up fees on the PBA account
- Ask HMRC to put to the Probate Registry reference on the email sending the IHT421 to the Probate Registry so there is the best chance of matching them up.
- All applications sent in both by paper or online form need a coversheet – again I can’t find a link but have copy if anyone would like one.
Finally, a word about the banks. As many of you will have found, Nat West and RBS are both now requesting all bereavement correspondence go through their own online portals. Again, my experience of these, as with HMCTS, are that they are very much a work in progress.
The banks are also continually releasing ever larger amounts of money without probate, often to solicitors on the strength of a death certificate and a request for date of death balances. The sky seems to be the limit at present with balances of over £100,000 being issued. I can see no benefit to the banks of doing so, and whilst it does mean in some cases funds are available earlier on in the administration of the estate, we are having increasing incidences of the funds being released to the wrong family members.
As a reminder, if this happens it is generally up to the banks to pursue the family member direct and they should pay out to the Executor again, but I have come across some banks who need some reminding of this !
Claire Rudkin
Derby & District Wills & Probate Committee
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