The courts launched the online probate application service in 2018 and it has recently been rolled out to the general public and executors seeking to “DIY” probate. According to the courts service the probate process is now “simpler and easier” as people can now apply for probate from the comfort of their own home. But is this truly a move in the right direction?
A Grant of Probate is usually needed when someone dies who owns property, or significant assets. Traditionally, many people have turned to lawyers for assistance at these difficult times, or at least needed to visit a solicitor or commissioner to swear an oath as part of the probate process. But the new online service now available removes the need for a lawyer’s assistance at any stage, as the application can simply be done online and oaths have been replaced with Statements of Truth that no longer require a solicitor or commissioner to swear them.
However, whilst the new system certainly may make the process easier to obtain a Grant, it will not assist everyone and will not provide some executors with the assistance and advice they need.
The first problem with the new probate online service is it is only available for the simplest of estates, and cannot be used in cases where:
There is no Will (intestacy) – although this will be brought in in future
The original Will is missing
If the person who has died was not domiciled in England and Wales.
Where the executors do not get on and are not willing to apply jointly.
In order to use the online service, you will also be required to complete an Inheritance Tax return prior to the online probate application. If you don’t know where the Will is, or only have a copy, aren’t quite sure how to complete an Inheritance Tax return, or there is a dispute between the appointed executors, there can be huge risks in applying for a Grant of Probate online, without having taken proper advice.
Another issue of the online system, is the lack of assistance and support it provides people with. By applying online, executors will no longer be getting the advice that lawyers should be giving to any person applying to probate. Executors will no longer be asked ‘Have you taken all the necessary steps to ensure this is the original Will? Has the correct type of Inheritance Tax return form been completed? Have you taken all necessary steps to identify any assets you may not be aware of? How can you as executor limit being personally liable for any claims against the estate once you’ve got your Grant of Probate?’
Ian Bond , chair of the Law Society’s Wills and Equity committee has said that the online system “absolutely has its place and can be a great tool for administering simple estates. However more complex estates can quickly become difficult to administer and many members of the public are unaware that they can find themselves personally liable for any mistakes they make”. Ultimately his advice was “‘If in doubt over any complex probate issues, it is always best to consult a professional to ensure the estate is administered properly”.
Worryingly, the Probate application fees are also still due to change this April, to a graded system where probate fees will increase in line with the size of the estate, with a maximum fee of £6,000 being payable. As the process to complete the forms at home coincides with the increase in fees, the temptation for some executors to incorrectly declare assets in estates for Inheritance Tax purposes to avoid higher probate fees may result in Executors facing penalties and interest as well as additional tax. These are areas in which executors would have received advice, and assistance in the past when using a probate lawyer.
In a world that is increasingly litigious, executors who may decide to take advantage of the new online service may do so not realising the potential for claims to be brought against them personally, and therefore as a result of the online service, we may see more and more contentious probate claims being brought against Executors who are not aware of their duties and responsibilities to the estate and its administration. Executors who are named in Wills may not realise the various options available to them, including whether or not to act, or steps they can take to reduce their personal liability.
For now, we will continue to see how the new system works and whether we will see an increase in claims against estates and issues or rectifications when Grants of Probate go wrong. Just because something has been made easier for some, does not mean it is better for everyone!