27 April 2020 | Comment | Article by Eleanor Evans TEP

Lockdown Lawyers: Covid-19 and the effect on probate - 6 key areas

The Covid-19 situation has caused a number of practical difficulties when dealing with probate.

As the Head of the Trusts and Estates Administration department, I and my team are dealing with these on a daily basis and have the experience to navigate our way through the challenges on behalf of our clients.

 
What is probate?

“Probate” is a term used to describe the steps taken after someone dies – when their legal personal representatives carry out their wishes, recorded in their will.

If no will was left, they follow the intestacy rules. This involves gathering information about the deceased person’s assets – their property, money and belongings - and their debts. 

If the person owned assets in their own name, it’s often necessary to apply for a grant of representation. This is known as a ‘grant of probate’, if there was a will, or ‘letters of administration’ if there was no will. 

An inheritance tax account will need to be prepared and any tax due paid to HM Revenue and Customs.  A form is then completed (either online or on paper) by the legal personal representative (the executor of the will, or administrator in an intestacy) to make the application to the probate registry (a division of the court) for the grant of representation. 

Once the grant has been received, the legal personal representative can sell the deceased’s property, close their accounts and pay their debts. Once the required administrative steps have been taken, the money in the estate can then be distributed to the beneficiaries under the will or intestacy.

A legal personal representative can be a solicitor, a bank, or a lay person.  If it’s a lay person, they can instruct solicitors to apply for probate on their behalf. Many people choose to instruct solicitors due to the high level of responsibility that comes with the role and the complexities that can often be involved. 

 

The impact of COVID-19 Coronavirus on probate 

The Covid-19 crisis has led to practical difficulties. Some of these have been addressed by urgent procedural changes brought in to try and make the process easier. But there are further problems which are going to be more difficult to overcome and may lead to long delays in probate cases.

There are 6 key areas to watch out for:

  1. Registering deaths and arranging funerals
    It’s still possible to register deaths with local registry offices and to arrange funerals but expect some delays. Telephone appointments will be used in place of face to face contact, and social distancing restrictions will apply at funerals. The Government has issued guidance around managing a funeral during the coronavirus pandemic.

  2. Signing documents to apply for probate
    The probate registry has agreed to accept electronic signatures in place of “wet” ink signatures.
    They will also now accept statements of truth (which require a signature only) in place of affidavits (which have to be sworn in front of a solicitor) where previously affidavits were required; such as in the case of applications where the will is lost. 

    This should help reduce some of the practical difficulties in applying for probate at this time, as solicitors acting for legal personal representatives can email probate application papers to their clients for electronic signature and return, rather than requiring physical papers to be signed and posted. 

    The probate registry is also pressing on with plans to change the application process for professional applicants. Rather than applying with a statement of truth, applicants will be required to apply using an application form, or online, from 18 May 2020.

    Lay applicants applying for probate without professional assistance should also apply using the application form for individuals, or online.  Further information can be found on the UK Government website.

    It’s still necessary to send documents in the post even where an online application is made. Original wills should be sent by a secure method such as special delivery.  While Post Offices are still open, they may be operating on reduced hours.   

  3. The completion and signing of inheritance tax forms for HMRC
    HMRC have also confirmed they will accept electronic signatures on IHT forms where previously wet signatures were required. Again, this will ease the process for professional applicants or those acting on behalf of lay applicants.

  4. Payments to HMRC should be made by bank transfer rather than cheque
    It may be difficult to comply with all the usual requirements for valuing estate assets (such as properties) for IHT purposes.  In some cases, estimated values may need to be used. It should be clearly stated where values are estimated and corrected values should be agreed with HMRC at a later date, once it is possible to arrange formal valuations. HMRC’s process changes which have been made to help taxpayers in the Covid-19 situation are summarised in this article.


  5. Delays with HMRC and the probate registry
    The need to adhere to social distancing rules, and the fact many staff are working from home, will cause inevitable delays. Expect delays of at least three to four months between probate applications being made and grants being received - possibly longer.

  6. Problems with probate property sales
    Restrictions on the marketing and sale of property may mean there are long delays before properties in estates can be sold.

    Legal professional representatives, or beneficiaries, may choose to have properties transferred into their names, for them to sell at a later date.  The Government has issued guidance on the restrictions in place for property sales.

  7. Problems with probate property insurance
    Where properties are unoccupied, insurance policies usually have conditions in place requiring properties to be visited regularly.  It may be difficult to comply with such conditions now. 

    Unoccupied property insurance policies without regular visiting requirements are available. Enquiries may need to be made with insurers or brokers to move to such a policy if necessary.   

Keeping in touch

The legal personal representative, or their solicitors, should keep beneficiaries updated regularly.

It is likely that, at the moment, such updates will be made by email or telephone, rather than letter, as posting letters will be difficult. 

Where beneficiaries and solicitors need to make contact with each other, or their legal representative, email is likely to be the best method, given that most people are working from home and may be caring for children or other relatives. 


We can help you with COVID-19 Coronavirus probate issues 

If you have a query about your probate case, or would like to know more, please contact Eleanor Evans by emailing eleanor.evans@hughjames.com

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

Business news, knowledge and insight