Probate Applications – One Year On
Probate is the process an Executor of a Will has to go through in order to administer the estate of someone who has died.
On 1st January 2022, a number of changes to the probate process came into effect. The aim of the changes were to simplify, streamline and accelerate the process. One year on, we take a look as to whether the changes that were made have improved things.
An excepted estate is one where no inheritance tax is due because it is spouse or charity exempt or is covered by the tax free nil rate band. The new rules expand what is classed as an excepted estate with a view to reducing the number of the more complex Inheritance Tax Returns being submitted to HMRC. In theory, for any deaths post 1 January 2022, if an estate was “excepted”, the Executors or Personal Representatives could use the new, simplified format to apply for probate.
A simple probate application can be submitted online using the “My HMCTS” platform and at its best, takes less than a month to be completed.
The reality is, however, that there are still many occasions where non-taxable, non-complex estates, do not fall into this category. Instead, they are rejected and have to be submitted in paper form, and such applications are taking well in excess of 16 weeks to process. Any errors or missing documents in the application will cause further delay. In some instances, even for professionals, it remains unclear which type of application needs to be submitted.
A complex application requires initial submission to HMRC. Applicants then wait 21 days from submitting this application, before applying for probate. Ideally, HMRC and the Probate Registry then communicate with each other. HMRC provides the Probate Registry with the relevant paperwork to confirm all tax (if any) has been paid and the Probate Registry then issues the Grant of Probate. Unfortunately, we have noticed on a number of occasions that this communication fails and causes further delay in receiving the Grant.
Whilst the changes were welcome, and do in fact improve the speed at which we receive probate if a very simple application is submitted correctly, it is far from infallible. In spite of these new rules, the probate process remains tricky to navigate particularly if there is no Will, a trust of property, overseas assets or lifetime gifting.
The paperwork may have been altered but the responsibilities that rest with the Personal Representatives and Executors remain the same. A person administering an estate has a legal duty to ensure that the estate is properly administered and could face penalties or have to deal with disgruntled beneficiaries if not. It is therefore important not to be caught out by the potential pitfalls that could befall any probate application. To ensure you have made full disclosure and claimed all available allowances when applying for probate, it is best to seek legal advice to ensure an estate has been properly declared.
Sophie Fenn is a Senior Associate Solicitor in The Wilkes Partnership’s Private Client team based in the Shirley, Solihull office and can advise on probate application enquiries and make applications on behalf of executors. Sophie can be contacted on [email protected] or 0121 733 8000.