Probate Service “should outsource complex cases to law firms”

Davies: Delays having considerable impact on clients and lawyers

Complex probate cases should be outsourced to law firms to cut the backlog of cases at the Probate Service, the Society of Trust and Estate Practitioners (STEP) has said.

Meanwhile Emma Davies, president of CILEX, said the “lack of adequate staffing”, particularly to deal with complex cases, was “at the heart of the problem”.

STEP and CILEX were responding to a call for evidence by the justice committee, which launched an inquiry into the probate process in November, following growing concern over delays.

The figures from HM Courts & Tribunals Service for that month showed the time from submission to grant issue was 15.8 weeks, and 13.9 weeks from document upload to grant, both record highs, although the government said earlier this month that delays were easing.

STEP said that to tackle the backlog of cases, “consideration should be given to outsourcing complex cases to a limited number of experienced law firms for a period of time”.

This could be combined with probate registry staff being seconded to the relevant firms “for periods of say six months at a time” to “gain experience quickly and better understand the types of issues that can arise” and how best to solve them.

“To avoid a conflict of interest, any firm selected to act in this way would not be able to deal with their own probate applications. Those could be allocated to a different firm in the group chosen.

“An alternative to this might be for private practice probate practitioners to be seconded to the probate registry for a fixed period so as to provide an instant (albeit temporary) boost to levels of expertise.

“Not only could such practitioners help clear the existing backlog but they could also pass on their experience to registry staff and assist with training.”

STEP said it was “evident from our members’ experiences, and from the probate registry’s own figures, that the registry does not currently have the necessary resources, capabilities and expertise to process probate applications (and in particular complex applications) in a timely manner”.

An “overwhelming majority” of members that STEP surveyed agreed that lack of suitably experienced staff was the fundamental issue.

Six out of 10 believed delays resulted from inexperienced staff being unable to process difficult cases and leaving them for more senior colleagues to review.

CILEX, noting that waiting times had almost doubled from April 2022 to April 2023, agreed that the Probate Service lacked the necessary resources.

CILEX carried out its own survey of 189 practitioners, which found that two-thirds believed better staff resourcing would improve the situation, highlighting an “urgent need” for staff with the technical and legal knowledge to deal with complex applications.

Meanwhile, property sales were falling through because of the wait to obtain a grant, with a “knock-on effect” on lawyers’ ability to charge their fees. Lawyers were also being blamed by their clients, even though they had no control over the process.

Ms Davies commented: “The ongoing delays in the Probate Service are having a considerable impact on CILEX lawyers and their bereaved clients, causing stress and anxiety at an already difficult time in their lives.

“While the use of technology and streamlining of the process would be potentially useful, it is a lack of adequate staffing that is at the heart of the problem.

“The Probate Service needs sufficient staff with the capacity, training and experience to handle complex cases, to deal with stopped applications and respond effectively to enquiries.”

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