In spite of concerns within the profession that the online probate service is not yet properly working, it is now mandatory for most applications for grants in non-contentious probate. It will not be mandatory in relation to grants of administration (including with will annexed).
As of 2 November 2020, rules come into force requiring probate practitioners to submit their applications through the portal, except in specific cases. These include:
- A second grant of probate in respect of the same estate.
- A grant where the person entitled has been convicted of murder or manslaughter of the deceased or has otherwise forfeited the right to apply.
- A grant in respect of a foreign will.
- A grant accompanied by an application for rectification or fiat copy of the will.
- Additional complex cases.
In addition, if you need to send original documents in support of an online application, these must be sent separately to the registry in accordance with portal instructions.
However, there is a grace period which lasts until the end of November during which paper applications will still be accepted.
For a couple of years or more, probate applications have been taking many months to be processed, causing distress and frustration both for private client and property lawyers, and for the bereaved families themselves. The government believes the new system will make probate services faster and more reliable.
But users who have been choosing to use the online portal in recent months have been reporting continuing teething problems which have not yet been resolved. Users have reported recent issues ranging from problems with registering and applications ‘vanishing’, to being unable to contact anyone for help by phone, email or webchat – and errors in grants received.
Last month (October), when government published its response to the consultation on mandating online professional applications, the then Law Society president Simon Davis said the Society agreed in principle with making it compulsory.
However, he added: “Whilst there are clear benefits to having all professional probate applications online – such as that the online system provides instant feedback – solicitors have also experienced some teething problems with the new system" – which he said must be resolved and that HMCTS must ensure the system was fit for purpose before the new rules came into force.
He said: “Further clarity is also needed on what alternatives will be available if the system experiences difficulties – such as technology issues or if the case is particularly complex or unusual.”
For practitioners who have not been too quick off the mark, firms will first need to register for an account with MyHMCTS as a professional court user (if it isn’t already).
If your firm has already registered, HMCTS says it will contact you before 2 November with further information.
Written by Nicola Laver, a non-practicing solicitor and a qualified journalist. She is also editor of Solicitors Journal.