While there has been some improvement at the UK probate registry in recent months, the quality of service remains unpredictable, rendering firms ill equipped to manage their clients’ expectations.

That was the opinion shared by ICAEW Director of Regulatory Policy Sophie Wales at a recent hearing on delays in the probate system held by the Justice Committee on 30 April. Other witnesses included:

• Ian Bond, Chair, Law Society's Probate Professional User Group; 
• Mark Walley, CEO, Society of Trust and Estate Practitioners; and
• Stephen Ward, Director of Strategy and External Relations, Council of Licensed Conveyancers.

Staffing issues

Justice Committee Chair Sir Robert Neill KC MP acknowledged the consensus established by the witnesses’ written evidence that probate office staff levels are inadequate. He asked if staff increases in recent years had affected the experiences of their members.

The witnesses agreed that increasing staff numbers was not sufficient enough to solve the probate office’s problems. New staff need robust training to be equipped to meet demand. Wales highlighted that a lot of knowledge has been lost through the departure of experienced staff from the service.

“A computer system has not replicated that knowledge. It may have helped with allocating cases, but it has not helped that knowledge, so I think there is that gap and they’re trying to build it up again. It’s good that they’re trying to do that,” she said

Moving staff from one part of HM Courts and Tribunals Service (HMCTS) would not necessarily help as the knowledge is not always transferable, Wales explained. “Our firms say that it’s really hard for them to know there are still pockets of that good knowledge because they’re waiting for up to an hour for a call to be answered. The person they speak to probably doesn’t know the answer and probably can’t help them.”

Rachel Hopkins MP asked what degree of training would adequately equip probate office staff. Ward suggested the secondment of experienced probate practitioners to help train HMCTS staff. Wales said that it was also a paucity of registrars that was causing a bottleneck. Hopkins said that some may wonder why expert practitioners should require assistance from registry staff in submitting applications.

Walley clarified that contact is more about stakeholder management, and that it is useful to discuss the nuances of a case and touch base with the person who will be processing it. Wales agreed that it would be better for the probate system if there were avenues for discussion.

Dr Kieran Mullan MP asked witnesses’ views on bringing in more third-party support, and if adjusting procedures in this way, even temporarily, could have detrimental effects on service delivery.

Ward and Walley both said that there is plenty of third-party expertise to be drawn from as a temporary solution to the existing backlog. Wales suggested that, to avoid excessive disruption, a proportion of staff could train with an experienced practitioner on a rotation basis.

The future and service standards

Edward Timpson KC MP asked how well the probate registry is prepared to handle the challenge posed by increasing death rates.

Ian Bond said that probate rules are some 30-years old and need modernising, particularly to be able to process the growing array of digital formats of modern day wills. Wales called for will writing to be regulated.

Edward Timpson KC MP asked about the introduction of minimum service level standards for the probate registry, and how these might be implemented. Wales called for a holistic approach covering four main areas:

• realistic processing times should be published;
• there should be a stated, maximum number of working days by which queries are guaranteed to receive at least an acknowledgment;
• applicants should have the ability to speak to the person dealing with their case, perhaps by appointment; and
• the ability to talk to someone within the probate service within the first 16 weeks.

“Almost four months is a really long time for you to have to say to a grieving family member: ‘I don’t know. Not a clue. Can’t help you’. Even if it’s just: it has been accepted and it has been allocated to somebody and you will be contacted in however long. I think there are some quite simple things that could be done that would make a massive difference to managing expectations of users of the service.”

The Chair asked if the regulatory framework around reserved activities on probate, will writing and estates administration is broadly correct.

Wales emphasised the incongruence in the lack of regulation of a document as important as a will; she said poorly written wills ultimately end up costing people more money. Ward said he agreed with ICAEW’s stance on wills.

“It seems very odd that you have to be regulated to do the probate but not to write the will,” she said. “It’s the most important document that you’re ever going to have written for you, bar a few others, and it’s very odd that anyone can write that for you.”

She added: “If a firm has to step in after someone’s death and deal with a poorly drafted will, it ends up costing the family more than if it had just been paid for and done properly in the first place.”

The Chair asked about the key lessons for HMCTS. Wales said there is a need to address the short-term problem of upskilling staff, and called for the probate registry to introduce minimum service standards; she suggested there should be measures to mitigate some of the financial damage that has been caused to people by the delays. The Chair welcomed her offer to follow up on this in writing.