Vanina Wittenburg looks at lockdown measures for probate and considers how we should work to streamline it in the future

  • July 21, 2020
  • By Vanina Wittenburg, Senior Associate

The Covid-19 pandemic has presented private client lawyers in England and Wales with a number of practical issues. It has also given us the opportunity to consider the processes we deal with, and how we might take advantage of technology to make our lives easier, and provide our clients with a better, faster and more efficient service – and the same seems to be taking place in many other jurisdictions.

Our area of law tends to be slow to change, and a lot of what we do on a day-to-day basis revolves around paper and the post, which is less than ideal in a time of working from home and social distancing. Applying for probate in England and Wales is a very good example of this, and although there have been some positive developments in the last three months, there is more work to be done.

The Probate Service in England and Wales has reported that during the Covid-19 lockdown it has only received half the number of applications for probate it expected. This is despite the fact that both the Probate Service and HM Revenue & Customs (HMRC) have introduced special measures to ensure compliance with social distancing rules. One of these is allowing probate applications and inheritance tax accounts to be submitted with electronic signatures (in this case, the personal representative’s name typed in the relevant signature box, with the addition of an appropriate declaration by the professional involved), so that hard copies do not have to be circulated to personal representatives for signature.

Although helpful, this does not go far enough in modernising the process, as demonstrated by the fact that there has been such a marked reduction in applications during lockdown. There are a number of additional practical complications that explain this reduction, including:

• Inheritance accounts, which can run to hundreds of pages, still have to be submitted as hard copies (although HMRC has recently announced it will trial electronic submission, which is very welcome news).
• The original Will, any codicil and any other original documents must be posted to the Probate Service (whether a probate application was made online or on paper).
• Online probate applications have only very recently been extended to include circumstances that often apply to applications made by professionals e.g. where a partner of a law firm is acting as executor. This has meant take up of online applications by law firms has been low so far.

These are some of the factors which have made it difficult, if not impossible, for many private client solicitors to lodge probate applications during lockdown – many of us are working from home, with no easy access to our deed storage facilities, office equipment and paper files.

There is no doubt that private client solicitors are sometimes part of the problem: for example, some firms may have realised as a consequence of lockdown that they need to make better use of data management systems to store files in a more accessible way. Nonetheless, much needs to be done by the Probate Service and HMRC to make their processes more streamlined and less reliant on paper, particularly in light of the fact that a huge surge in applications is expected once lockdown is lifted.

There are a number of matters that need to be considered – by our profession, other professional advisers we deal with and government bodies, such as:

• We should question our reliance on hard copy, original documents. It has been refreshing to see so many investment managers accepting copies of documents certified by email. As long as this goes hand in hand with a consideration of cyber security issues, it would greatly improve efficiency.
• We should also make better use of electronic communication. Again, investment managers, as well as accountants and independent financial advisers, are already very good at providing reports and information by email. The same cannot be said for the Probate Service or HMRC – and in fact the latter only communicates by post.

The Covid-19 pandemic has brought to the fore longstanding practical issues which should have been addressed a long time ago, but expedience now demands that we modernise our way of working. Now is the time to analyse the ways we do things, and use the technology available to us to ensure that we will be more resilient to dramatic societal changes, and become more efficient and effective in our day-to-day work.

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