Lockdown challenges in probate

But private client work – particularly wills and probate – is one of the few that will.

Despite the initial weeks of a sharp slowdown in private client work, a direct result of the lockdown and the need for strict social distancing, wills instructions have escalated as people have been confronted with the reality of their own mortality.

Probate instructions are also going to start to rise steeply for obvious reasons. But how will the process of administering estates be handled at a time when social distancing is going to be expected for the foreseeable future - and it is not at all ‘business as usual’ for the courts?

On 17 March, a few days before the UK lockdown was implemented by the Prime Minister, the Lord Chief Justice Lord Burnett said: “It is not realistic to suppose that it will be business as usual in any jurisdiction, but it is of vital importance that the administration of justice does not grind to a halt."

And early on, HM Courts and Tribunals Service (HMCTS) issued much-needed clarity on what business it will conduct during the covid-19 crisis. It published guidance on what it is prioritising in the civil and family courts. In relation to private client work, the following is being prioritised for now:

• Work that must be done includes, in the Court of Protection (CoP): urgent applications; applications under the Mental Capacity Act (MCA) 2005 ss16A and 21A; serious medical treatment cases; deprivation of liberty; form COP1 Statutory Wills (near end of life); and safeguarding applications via the Office of the Public Guardian.
• Work that will be done includes welfare cases in the CoP; and
• It will do its best to do CoP property and affairs, and probate

But delays are to be expected. HMCTS has already warned lawyers that there may be delays in granting probate with the application process taking longer than expected. The delays are likely to get longer as solicitors start to catch up with their existing backlog of applications – and as the numbers of probate applications increase as the weeks go on.

It has been revealed that the number of applications (both personal and solicitor applications) for grants of probate have halved since the lockdown was imposed, which is no surprise given that many solicitors have not been able to access their offices or papers. This has come from the Law Society which meets regularly with HMCTS to review the status of the probate service during the crisis. Around 5,000 to 6,000 applications a week were typically received before lockdown.

But practitioners can take comfort from the Law Society’s message that HMCTS is “fully aware” of an impending surge in applications due to the increased number of covid-19 deaths; and demand from lawyers who have been unable to work normally.

HMCTS does have contingency plans which apparently include training staff members in dealing with probate applications and possibly taking on additional staff to cope with a surge.

Changes

The President of the Family Division has also issued useful guidance in relation to the replacement of affidavits with statements of truth in non-contentious probate processes during the crisis. So that routine probate business can continue, district probate registrars are now authorised to allow statements of truth to be used as an alternative to affidavits for specified applications and processes in the Non-Contentious Probate Rules 1987. Though the guidance says this will be in place until 30 July 2020, it could be made a permanent rule change.

IHT Payments

One of the specific practical challenges probate solicitors are having to deal with during the pandemic crisis is the payment of inheritance tax (IHT). HMRC’s update on this issue (given, incidentally, to the Chartered Institute of Taxation in April) also sets out how to obtain signatures to IHT forms at the moment. It set out these changes:

• Cheques: HMRC is no longer accepting payment by cheque. Instead, IHT must be paid via one of the means set out in gov.uk/paying-inheritance-tax (it recommends Faster Payments (online or telephone banking), CHAPS or Bacs to HM Revenue and Customs’ (HMRC) account).
• Repayments: similarly, HMRC will not issue repayments by cheque (or payable orders). Instead, they will be paid directly into a customer’s bank account via Faster Payments. To do this, HMRC will need the full bank details (in writing and headed ‘repayment’) of the relevant bank account to which repayment is to be paid. The information should be sent to Inheritance Tax, HM Revenue and Customs, BX9 1HT, United Kingdom,
• Signatures: in the case of signing forms IHT400 and IHT100, a new temporary process has been agreed by which printed signatures will be accepted, so long as certain requirements are complied with. These include the requirement that if a professional agent is acting, the form should include a clear, unambiguous statement from the agent to confirm that all the legal personal representatives or trustees (shown on the declaration page) have seen the account and have agreed to be bound by the declaration.

More change

The new application for grants of representation forms, launched by HMCTS for use by legal professionals in March, are now mandatory (as of Monday 18 May). The new, standard application forms have now rendered the statements of truth redundant following a brief introductory period.

Any statements of truth still being sent in will be returned, with a request to replace them with the appropriate new form. The new forms, which can be found here, are as follows:

• PA1A (applying for grant of letters of administration)
• PA1P (applying for a grant of probate)
• PA8A (applying for a caveat)

The Law Society was expected to publish guidance on the new application form by mid-May.