The Trusts and Estates Administration department at Hugh James deals with probate and estate administration, on behalf of family members of people who have died. Since March, we have seen numerous changes in the way we currently work, the estate administration process itself, and the laws relating to wills and probate, and I have reflected on these changes in this blog post.
Working from home
Before March 2020, our team was almost entirely office-based; working from home was rare. We had brought in electronic processes (albeit these were carried out in the office) several years ago; all our mail is scanned, and we use an electronic case management system rather than paper files. This meant that, when lockdown started, it was possible for our teams to adapt to working from home with relative ease. That said, it was inevitable that many of our processes had to evolve as we adjusted to home working during the pandemic.
Increased use of email
Our practice is to update estate beneficiaries on at least a monthly basis. Previously, detailed updates were usually sent by letter, but we now use encrypted email in most cases. We still regularly communicate with beneficiaries on the telephone.
Use of telephone and video calls
Like everyone, our teams have become much more used to video calls. While we try and use the telephone as much as possible, we have found that third parties such as the probate registry (the division of the court that issues grants of probate), HM Revenue and Customs, and companies with which the person who died held accounts, are not necessarily as easy to telephone as they once were. In some cases, they prefer contact online or by email. We have had to adapt, depending on the preferences of the third party.
Posting letters and documents
Using ‘snail mail’ is unavoidable in some parts of the estate administration process. We have put in place procedures for letters written by lawyers who are working from home to be supervised, then printed by our office-based Business Support team who will add the necessary enclosures and send the letters out in the post.
Team communication, supervision and training
All the work carried out by our lawyers is supervised to ensure it is accurate and legally compliant. Again, we had to an extent implemented paper-free supervision processes before Covid-19 hit, but face-to-face supervision and training have changed.
Our case management systems and supervision processes enable our work to be supervised remotely, and supervisors check in with their team members in Teams calls. Our senior lawyers also hold “surgeries”, where anyone in the team can drop in and discuss a query. Previously, these would have taken place in meeting rooms or at someone’s desk, but currently, we are all attending these each other’s homes (virtually) to ask our thorny legal questions!
Training is also taking place remotely, and this ranges from “desk-based” training where screens are shared over Teams, to e-learning and more formal webinar style training.
The probate registry and HM Revenue and Customs (HMRC)
The process for applying for grants of probate, or letters of administration (collectively known as grants of representation) has changed in several ways during 2020. Some of the changes would have happened anyway; for example, the move to a new application form for professionals (replacing statements of truth, which had replaced oaths), and the new online probate application system.
We have adapted our practises to work with both the new probate application forms (which have not necessarily been fit for purpose, particularly for complex applications) and the online system, which has had some glitches. The online system is now mandatory for some probate applications, although it cannot yet support more complex cases.
The probate registry has also introduced some Covid-specific processes to help practitioners during this period. For example, where previously it would have been necessary to have an affidavit sworn to evidence a particular set of circumstances (such as a lost will), it is now possible to use a signed statement of truth. These relaxed measures are temporary, but work well, so hopefully, they will become permanent.
The last couple of years have seen several disruptions to the previously smooth service provided by the probate registry, resulting in significant delays in grants of representation being issued. The probate registries are still mid-way through a re-structure, with local registries closing and the service being centralised into Birmingham. There have been two attempts by the government in the last few years to drastically increase probate court fees, resulting in huge influxes of applications by people hoping to get their grants before the fee changes took place. Inevitably, these spikes in applications, combined with the re-structure and the changes in the applications process, resulted in backlogs at the probate registries. Gladly, the proposed fee increase was shelved and seems unlikely to rear its head again, or at least not on the scale originally proposed. Unfortunately, there are still long delays, no doubt exacerbated by the Covid situation.
HMRC have also adapted to the Covid world and several processes have changed. Receipted IHT421 forms confirming the payment of inheritance tax (IHT) are now sent directly from HMRC to the probate registry, rather than back to the personal representative of the estate. HMRC will accept electronic signatures in certain circumstances. The process for issuing IHT clearance certificates has also changed; the stamped form IHT30 is no more, and clearance letters are issued instead. Again, these changes may be here to stay.
Timescales
Unfortunately, the average timescale for dealing with an estate has increased. The long delays at the probate registry, in particular, have had a knock-on effect. In addition, other third parties upon which lawyers are dependent to progress estates, are often slower, due to the pressures all businesses have been facing.
Where estates own properties, we are always subject to the ups and downs of the property market, although our experience is that estate properties are continuing to sell. Where there is a tenanted property, however, the probate sale process can be much trickier to manage due to the changed rules regarding rental properties during Covid.
Video wills legislation
Section 9 of the Wills Act 1837, which governs the formalities for the execution of wills, has been amended to allow wills to be witnessed by video link for a two-year period from 31 January 2020. There are specific rules to be followed where this process is used, and the guidance from the relevant professional bodies, such as STEP, is that video wills should only be made as a last resort. We have not yet seen a case where a will has been witnessed by video link, but when we do, we will need to navigate the probate registry’s requirements – as yet unknown – for admitting the video will to probate. Some practitioners have suggested that the new legislation could give rise to an increase in contentious probate cases.
The future
The landscape for probate and estate administration has changed substantially over recent months, and some of these changes seem like they will be here to stay. It will be interesting to see what developments in the next few months bring.
