Back in 2017, when my wife Kate died, I went through probate for the first time. It was a complex and extended process I navigated only with some difficulty.
So, following my mother’s death in January 2022, I was delighted to learn that a far simpler online system had been introduced.
There seemed no obstacle preventing my brother and I, acting as Mum’s joint executors, from promptly distributing her estate in accordance with her will.
But I soon came to realise that there are faults with this system which undermine its effectiveness. Though it is now four years old, it continues to struggle and urgently requires improvement.
I offer several recommendations below.
There is relatively little commentary available online from the personal applicant’s perspective, the large majority emanating from lawyers dealing with their parallel process. It is fair to say that most lawyers’ testimony is damning.
And plenty of personal applicants are dissatisfied with the present quality of service.
This is a sample of Tweets addressed to the @HMCTSgovuk account in the last week. They confirm that my personal experience has not been atypical.
There is a standard response to these complaints: a request that the applicant DM’s details of their case so delays can be investigated.
Background: Applying for probate
Probate is the legal right to deal with someone’s estate after their death. It is only needed in certain circumstances but, if it is needed, it must be granted before one can unlock a dead person’s assets.
If the deceased has left a will, the executors named in it may apply for probate. Up to four executors may be named on an application.
Before applying, the executors must estimate the value of the estate and establish whether there is inheritance tax to pay.
If the individual concerned died after 1 January 2022, they no longer have to report the estate’s value to HMRC. They simply calculate the gross and net values of probate (ie. net of any debts and funeral costs), entering those values on the online probate application form.
If they prefer not to apply themselves, executors may hire a legal specialist to act on their behalf. But this can be very expensive, since lawyers may charge a hefty fee – as much as 5% of the value of the estate.
In most straightforward cases it should now be a waste of money to employ a legal professional, since the process – in theory at least – is so much simpler and less onerous.
Probate is administered by HM Courts and Tribunals Service (HMCTS), an executive agency of the Ministry of Justice.
Until recently this work was undertaken in ten regional probate registries but these have now closed, as part of a wider courts reform programme.
Applications are now dealt with by a centralised courts and tribunals centre located in Birmingham. This manages the approvals process using a computerised filing system. It also provides helpline and webchat support for applicants.
The probate registry still holds the original hard copy of each will, but HMCTS must also have a digitised version – and sometimes other digitised supporting documents – to link with the application in a computerised file.
So the Ministry of Justice contracts with a private company to scan and digitise these documents in bulk, once they have been received by post from applicants, so that they can be incorporated into case files.
This has been undertaken by Exela Technologies which, in April 2018, was awarded a contract worth £4.5m.
The contract is listed as having expired in April 2022, but applicants are still directed to address their documents to Harlow, Essex, where Exela is based, suggesting it has been extended.
Unless the value of their estate is £5,000 or less, executors are charged an application fee, payable at the time of submission. The fee increased to £273 in January 2022, up 27% on the previous sum of £215.
This amount is, presumably, the estimated average per-application cost of running the service.
There is a prominent notice in the ‘Apply for Probate’ section of gov.uk:
‘Probate applications are taking up to eight weeks to process. It’s taking longer to process paper applications than online applications.’
Note that this formulation implies that eight weeks is the maximum time online applicants will have to wait.
This apparent eight-week deadline starts from the point that HMCTS has received your application plus the will and any other supporting documents required.
The guidance is opaque on the vexed question whether the clock starts ticking when Exela receive the original paper copies you have posted them, or when HMCTS get the digitised version from Exela. By rights, it should be the former.
In February 2022, HMCTS published a blog post about the parallel process for legal practitioners.
It says that, between January and September 2021, 130,000 applications were received by this route. Most took on average four weeks to complete but ‘stopped’ cases ‘could take more than double the amount of administrative time to issue’, which is more than the alleged eight week maximum.
The most common reasons for ‘stopping’ a case were: missing documents, missing executors or a query about the condition of the will.
This is equally true of the application route for executors. Most if not all straightforward cases should take no more than four weeks to complete, from the point executors have posted in their documents: it is only ‘stopped’ cases that may take longer.
But that is not the reality.
Performance of the online service for personal applicants
According to a July 2017 HMCTS blog post, the project to develop a digital probate service began in April 2016. Private beta testing was undertaken from June 2017.
The full online service for personal applicants was made available from July 2018, so it has now been in place for exactly four years.
The parallel system for legal professionals was supposed to be ready by the end of 2018, but did not come fully on stream until October 2019.
In a press release dated January 2019, HMCTS claimed that:
‘93% of those who have used it so far were satisfied or very satisfied with the service.’
Yet, seven months later, they had cause to publish another post explaining why so many applications were being delayed.
This says that over 30,000 applicants had by then used the online service, of which 92% still professed themselves satisfied.
But there had been ‘a huge surge in demand’ – a 50% increase during March and April 2019 – which had caused delays in processing times.
In response, staffing had been increased by 20% and:
‘For the vast majority of the more than 1,000 grants we issue every day, the waiting times for applications are now between six to eight weeks [sic].’
Readers were invited to get in touch if their cases were taking longer than eight weeks and this was not attributable to one or more ‘stops’.
The post continued:
‘None of this is to say that the current level of performance is acceptable. It’s not. We need to get back to issuing grants much quicker and so we are using all of our experienced staff who are able to authorise grants as well as drafting in a number of lawyers in HMCTS who have the expertise needed. With extra support now in place, I fully expect the delays to reduce further over the coming weeks.’
By October 2019, HMCTS were claiming that delays were abating, though ‘applicants are still waiting longer than we would like’.
And, in May 2021, they reported significant improvement:
‘For standard digital applications, it now takes us less than a week to issue a grant once we receive the right documents. It’s fair to say our workload increased substantially during the winter peak and the second wave of the pandemic. But the average overall time it took to issue grants in most cases did not exceed 6 weeks.’
It is not stated whether ‘receive’ in this context means Exela receiving the paper documents from the applicant or HMCTS receiving the digitised versions from Exela. Even so, a turn-round of less than a week for standard cases was a good outcome…if it could be sustained, that is.
This post also responds to an allegation that helpline callers had to wait an inordinately long time, often up to an hour:
‘In the last few months we’ve reduced the average call wait time from 19 to 7 minutes and are committed to improving this further. We did this by increasing the number of team leaders supporting staff, providing more training, extending our opening hours and rolling out an integrated technology system. The new system reduces wait times and enables us to answer more calls.’
By December 2021, the Law Society, conveying the outcomes of their user group meetings with HMCTS, reported that HMCTS planned to ‘return to the normal active case load of three to four weeks by March 2022’. One assumes this applies to the application route for legal professionals, however.
The Law Society also proposed that funding from the fee increase should be ring-fenced for the probate service and, further, that:
‘The government should implement a minimum service level standard for individual applications, whereby if the service drops below that standard on an individual application, then the application is automatically reimbursed percentage of the fee.’
According to this PQ, answered in March 2022, the average telephone wait time in 2021 as a whole was 15 minutes 8 seconds and in 2020 13 minutes 17 seconds – roughly double the seven minutes claimed above.
The Law Society subsequently noted in February 2022 that, in the final quarter of 2021, the average telephone waiting time was 8 minutes, compared with a peak of 40 minutes earlier in 2021.
By the time of its next report in April 2022, these waiting times had seen ‘a slight increase’. HMCTS was said to be planning to trial increasing the human resource devoted to webchat, relative to the telephone helpline.
There is so far no published report from the Law Society on its most recent user group meeting with HMCTS in May 2022.
According to STEP, HMCTS stated in April 2022 that it expected the high level of demand experienced this year to decline at the end of May.
However, it also revealed that it had switched resources towards handling ‘stopped’ cases, which would inevitably be at the expense of more straightforward cases.
What data analysis reveals
A breakdown of case turn-round times is included in HMCTS’s monthly management information.
Relevant columns from the most recent release – for May 2022 – are reproduced below.
These must cover both online application routes – for executors and for legal professionals. I have added average monthly figures for this period.
|Month||Total number of receipts (digital)||Total number of grants issued (digital)||Submission to grant issued, weeks (digital)||Documents upload to grant issued, weeks (digital)||Submission to grant issued, weeks, not stopped (digital)||Documents upload to grant issued, weeks, not stopped (digital)|
From this, we can establish the following about HMCTS’s recent performance:
- The number of applications received per month varies considerably – the total for March 2022 was some 56% higher than the total for December 2021. The average is just shy of 1,700 per month, but all 5 months in 2022 have been significantly higher than average. (As we have seen, HMCTS expected demand to reduce from June 2022);
- The average for the total number of grants issued in a month is just 324 less than the average number of monthly receipts, so there is no substantial backlog forming. That said, in only 3 of 13 months has the number of grants issued exceeded the number of applications received. This hasn’t happened in 2022, though the ratio is better in April-May than it was between January and March.
- For online cases, the average time between first submission and a grant issuing has varied from 6.2 to 9.4 weeks, averaging 7.4 weeks over this period. Only rarely has the average time exceeded 8 weeks and, since January 2022, it has always been lower. This includes both straightforward and more complex ‘stopped’ cases.
- Comparison with the time between first submission and grant issuing for straightforward cases that have not been ‘stopped’ reveals how ‘stopped’ cases drag down the average considerably. For straightforward cases, the average time taken varies between 3.6 and 4.7 weeks and averages 4.1 weeks. But, if we compare May 2022 with May 2021, the position has deteriorated slightly on both measures – for all cases and for straightforward cases alike.
- Comparison of the ‘document upload to grant issues’ columns with the ‘first submission to grant issues’ columns shows how much time is eaten up by the document scanning and digitisation process. For straightforward cases that have not been stopped, the difference between these two measures increased to 2.2 weeks in May 2022 (4.1 weeks minus 1.9 weeks). Before that, it never fell below a full week and the average is 1.4 weeks. This is a slow digitisation process, exceptionally so in May 2022.
- The time taken between document upload and issue of grant for straightforward cases only fell as low as one full week in May 2021. (This shows that HMCTS’s claim, above, to have attained a one week turn-round for straightforward cases, did after all exclude the time taken for documents to be scanned and digitised.) Since then it has fluctuated between 1.9 and 3.5 weeks, and the average is 2.7 weeks, so it is clear that HMCTS hasn’t sustained the level of performance they achieved last year. Given that applicants will rightly count from the date they posted their documents, that is the correct measure to target and publicise.
- The fact is that, in May 2022, using the date of submission as the starting point, the average applicant with a straightforward case can expect to wait a little over four weeks. On average, over half of that time – 2.2 weeks – will have been taken up with scanning and digitisation. That is unsatisfactory.
How this tallies with my personal experience
I made an online application on 29 March 2022, but failed to complete it because of a glitch in the system.
Because there were two executors – my brother and I – we each had to make an online declaration. I made mine, then my brother successfully made his, but on the application form, he continued to be shown as ‘not declared’, and this prevented the remainder of the application from unlocking.
We tried repeating the process innumerable times, but without success. Each time my brother was prompted to make a fresh declaration, but when he navigated to the link given, it said only ‘page not found’.
On 8 April I emailed the HMCTS helpdesk. I received a standard response warning that correspondence was currently taking longer than their 10-day target to process.
By 9 May, a full month later, I had still received no reply. I emailed again asking when I would receive a substantive response.
On Thursday 12 May I gave up on email and called the telephone helpline. Webchat was not available.
I started my call at 15:12 and was finally put through to an adviser at 16:24. That’s a waiting time of 72 minutes. It includes three minutes or so at the beginning while I navigate the electronic operator system, but is for me a new World Record!
To be frank, the adviser wasn’t too helpful either. She asked me to empty my cache, which I did, once again.
She wanted us to submit screenshots because they were needed before she could ‘raise a case with IT’. We complied. She said I wasn’t permitted to speak directly with IT.
However, she admitted that this was an issue several other applicants had experienced, so I asked why cases had to be reported individually – why there wasn’t a standard IT fix by this point? She didn’t know.
By Monday 30 May, nothing had happened so I called the helpline a second time. Webchat was again not available. I called at 14:05 and spoke to an adviser at 14:29, a waiting time of 24 minutes, including three minutes to navigate the operator system.
This adviser was rather more helpful. She said that a case still hadn’t been raised with IT, so she went through that process while I was on the phone. Her IT referral form was clearly bureaucratic and unnecessarily detailed.
She said that IT would respond to me directly. In her experience they normally took only ‘a day or two’. Since there were intervening bank holidays, I told her I would give them until 10 June before chasing up again.
On 13 June I made my third call to the helpline. For the third time, webchat was not available. I started my call at 11:07 and it was answered at 11:38, a wait of 31 minutes.
This adviser was also helpful. She chased the job ticket with the relevant Ministry of Justice Digital Officer – they are managing these IT issues for HMCTS – and gave me the name of her team leader should I want to make a formal complaint.
When I said, again, that I was surprised there wasn’t a standard IT ‘fix’, she mentioned that, while many applicants had this same problem several months previously, she thought the issue had now been resolved.
She suggested I abandon my application and start a fresh one.
I had been unsure whether this was permitted but, lo and behold, when we opened a fresh case, it worked perfectly!
So I submitted that second application on Monday 13 June, posting the original copy of Mum’s will on 14 June.
I received an automatic response to the former stating that: my application had been received; after my documents had been received it could take up to 14 days for HMCTS to confirm that they had been; it could take up to eight weeks to fully process my application after they had received my documents.
But I never received confirmation that Mum’s will had been received. So on Friday 1 July I made my fourth call to the helpline. It started at 12:59 and was answered at 13:12, a wait of thirteen minutes.
When I asked why I’d received no confirmation, I was told it must have been ‘an IT issue’. The adviser added that, even though my letter was sent registered on 14 June, it had not been attached to my case notes until 28 June, two full weeks later. So Exela had taken two full weeks to digitise a two-page will.
It seemed that HMCTS thought they might use this latter date as their marker for the eight week timeframe to begin.
Completely exasperated, I told them I would be complaining forcefully if I hadn’t received my grant of probate by 23 August. But I fully expected it at least two weeks sooner, by 9 August at the latest.
I wait to see whether HMCTS can redeem themselves.
I submitted my case on 13 June and posted them Mum’s will on the morning of 14 June.
It is now 24 July: they have taken 5 weeks and 5 days to date. I believe mine is a straightforward case.
My experience of the helpline service has been poor:
- On all four occasions there has been no-one available for webchat.
- My first call took an incredible 72 minutes to answer. The average wait time across all four calls to date has been exactly 35 minutes.
- It was clear that several customers had encountered precisely the same issue with co-executors’ declarations, but there appeared not to be a standard IT fix or, if there was, helpline staff had not been informed.
- Then, all of sudden, the problem was apparently resolved but no-one bothered to communicate that to me, or to advise me to start a fresh application.
- The elapse of two weeks between posting my will and having a digitised copy attached to my case notes is unacceptable but, as seen above, not presently atypical.
What should HMCTS do about this sorry state of affairs?
Well, it won’t surprise you to learn that I rather like the Law Society’s suggestion that part of the fee should be reimbursed if HMCTS’s performance drops below a defined minimum service standard – a kind of ‘delay repay’ service!
Shall we say 25% reimbursement if a straightforward ‘unstopped’ case takes more than 3 weeks from the date of submission’ and 50% if it takes more than 6 weeks?
If helpline staff cannot respond to a call within, say, 15 minutes, there should be an option to leave one’s number and receive a return call the same day. If your call isn’t returned, you also qualify for reimbursement of part of your fee.
In my experience, webchat support is virtually non-existent – a specified, published minimum level of service should be provided throughout opening hours. There should also be a published target response time for phone calls. These are basic service standards.
There should be a FAQ linked to the online form that identifies commonly encountered problems and advises what applicants should do if they encounter them.
Communication between helpline staff and MoJ digital officials needs improvement, so the former can better advise their customers, and to streamline the case-raising process so it isn’t quite so onerous and bureaucratic for helpline staff.
MoJ’s contract with Exela presumably specifies minimum turn-round times for the scanning and digitisation of wills and other documents, and Exela is penalised financially if they fail to meet them. These performance criteria should be published. If they are persistently missed, MoJ should of course terminate the contract and retender.
If the online process is properly managed and resourced at all stages, using the full income from applicant fees, there is no reason why the vast majority of straightforward cases should not be turned round in an absolute maximum of three weeks, starting from receipt of supporting documents from the applicant: one week for digitisation; two weeks for scrutiny and confirmation.