Updated probate rules – will a simplified process lead to an increase in unrepresented applicants unwittingly making costly errors?

Whilst the proposed increase in Probate Fees has attracted a lot of attention in the legal and accountancy world the Government’s announcement that…

Whilst the proposed increase in Probate Fees has attracted a lot of attention in the legal and accountancy world the Government’s announcement that the probate rules in England & Wales are set to change from 27 November 2018 onwards has gone mostly unnoticed. The rules are being amended without consultation amongst the profession – and with less than a month’s notice.

The proposed changes are broadly to be welcomed, and a positive step forward from a set of rules that have been in place since 1987.

Some of the main changes to note are:

  1. Probate can be applied for online by applicants who are not represented by a solicitor;
  2. The requirement for an Oath to be sworn before a solicitor or commissioner for oaths will be removed, so that a simple statement of truth will be required;
  3. The deceased’s Will shall no longer need to be signed by a solicitor or commissioner for oaths;
  4. A number of time limits in the caveat process for disputed estates are to be extended from 8 days to 14 days; and
  5. Caveat applications can be made electronically.

The changes will make the Government’s aspirations to make the process simpler more achievable.

However, dealing with a deceased’s estate can be a complicated task, where it is easy to overlook potential pitfalls that can land Personal Representatives into difficult situations if they are not careful, potentially leading to personal liability.

We have highlighted the risks previously.

We are concerned that the introduction of a simplified online process will encourage many to proceed without advice from a probate specialist, and risk unwittingly falling into traps which can take time, energy and significant costs to rectify.

With many of the well-established checks and balances no longer in place, we anticipate the changes may also result in an increase in fraudulent or mistaken probate applications being made. Sadly when this does occur, it will undoubtedly lead to further distress for a deceased’s family and friends at an already stressful point in time.

We always recommend liaising with a probate specialist before starting to administer an estate, in particular, to discuss some of the key steps that should always be taken and whether it may be in the estate’s best interest for the solicitor to assist.

If you would like to discuss a deceased’s estate or have any questions regarding the probate process in general, please contact Weightmans’ Wills, Trusts and Estates team.


David Stokes is an Associate Solicitor in Weightmans’ Wills Trusts and Estates team

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