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New government mandate to force probate practitioners into 2020

From Monday 2 November 2020, it will become a compulsory requirement for all solicitors and probate practitioners to submit non-contentious probate matters online.

Where estates are complex, it is likely that they will be covered under the exceptions specified in a new Schedule 3 to the amended Non-Contentious Probate Rules 1987.  In these circumstances and paper/hard copy submissions will still be permitted.

The exceptions to the requirement to apply for probate on-line include, among others:

  • Grants of letters of administration and letters of administration with will annexed.
  • Grants to attorneys and trust corporations
  • Urgent grants (grants ad colligenda bona).
  • Grants in respect of foreign wills.
  • Grants where deceased died domiciled outside England and Wales, except a grant under rule 30(3)(b)[1].
  • Applications to prove a copy will.
  • Applications for rectification of a will.

The Probate Service claims that the online application form is easier to understand but it is important to note that an applicant is still required to provide supporting documents as per the current process. These are:

  • The original Will and two photocopies.
  • An official copy of the death certificate.
  • The associated inheritance tax forms and figures.
  • Any other supporting documents relevant to the case (e.g. a renunciation form)

The Law Society president Simon Davis expressed that whilst he agrees with this reform in principle, solicitors have also experienced ‘teething problems’.[2] Mr Davis also called for Her Majesty’s Courts and Tribunals Services (HMCTS) to ensure that these ‘issues are resolved and the system is fit for purpose before it is fully rolled out’.

Presumably in response to this criticism earlier in the month, HMCTS has released new online probate service guidance documents[3] which aim to aid practitioners with online submission.

In short, the changes to the old process can be summarised as follows:

  • The requirement to mark the Will and swear an oath has been abolished.
  • A draft legal statement which is generated from the information provided, is the equivalent of the old form separate statement of truth. The draft can be downloaded as a separate PDF document in order for the personal representatives to review, approve and sign.
  • Following the personal representatives’ approval of the legal statement (including any amendments required), the practitioner can finalise the application and submit it via their MyHMCTS account. This requires the practitioner to confirm that the personal representativess have agreed with the legal statement and declaration. No changes can be made after this confirmation.

The above changes come after the introduction of the new paper form PA1 which replaced Statements of Truth in Spring this year. This aimed to unify the procedure for both professional and layman applicants when not using the online portal and its introduction seems to have been well received and relatively seamless.

It is clear that 2020 has been a busy year for HMCTS and probate reform. According to the Ministry of Justice the new system will result in three quarters of professional user applications moving online. This government mandate marks a large step which will bring archaic paper-based probate practices into the technology ridden 2020s. Although the age-old saying[4] proclaims that in life, only death and taxes are certain, the certainty of the success of this reform which amalgamates the two, remains to be seen. The results of this change will become apparent in the coming months – it is worth bearing in mind that the system is still under development.

This significant change to the professional probate practice comes after the government asked the president of the Family Division to amend the Non-Contentious Probate Rules 1987.

The government welcomes the online probate service to save time and taxpayer money.[5]

If you are an personal representative and require assistance with reporting to HMRC, applying for probate and/or the administration of your estate please get in touch with your usual contact at MTG.

MTG can also assist in navigating contentious probate issues.

 



[1]               where the whole or substantially the whole of the estate in England and Wales consists of immovable property, a grant in respect of the whole estate may be made in accordance with the law which would have been applicable if the deceased had died domiciled in England and Wales

[2]https://www.lawsociety.org.uk/en/campaigns/court-reform/news/update-to-the-non-contentious-probate-rules-mandating-online-professional-applications

[3] https://www.todayswillsandprobate.co.uk/main-news/hmcts-issue-new-online-probate-service-guidance-documents/

[4]               Attributed to Benjamin Franklin

[5]               https://www.lawgazette.co.uk/news/online-probate-forms-mandatory-for-solicitors-from-next-month/5105820.article

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