Probate applications are going online

By September 17, 2020Property

Details of consultation have been released by the Ministry of Justice that proposes making online applications made by professionals for Grants of Probate or Letter of Administration mandatory. In this blog, we look at whether the probate process should go online entirely.

The consultation published by the Ministry of Justice proposed that all probate applications should be made online with the exception of four probate applications being:

  1. Where there are multiple applicants entitled under intestacy (although the system is currently being developed to allow such applications;
  2. Rule 31- grants to attorneys, only where the attorney (representative for a deceased person who when alive was subject to a power of attorney order) is not an existing probate professional able to use the online service; 
  3. Rule 36- trust corporation applications (these must be made by officers of the Trust Corporation); and 
  4. Rule 39 – resealing under Colonial Probates Acts (these applications continue to require an affidavit, rather than a statement of truth and thus need to continue to be paper-based). 

The Ministry of Justice set out in their consultation paper many advantages of the probate process going online entirely, one of those was saving the users cost and time, and providing a more efficient and reliable system. They also included providing a secure means of making a probate application with an immediate receipt on making the application, and that the system would be accessible to use at any time.  

It has also been proposed that the system is set to include a detailed checklist of the steps required to be completed which is likely to reduce the number of errors being made and ensure all of the information required in order to complete the application is included at first instance, this should help speed up the time probate applications are being processed and turned around. 

It is accepted that the new online system will have many advantages to it, but what are some of the disadvantages? 

With more and more of us working from home, there has been a strain on the telecommunications industry to enhance the systems so that more connections at a higher speed and rate can be made. Although time and costs will be saved by making probate applications mandatory this will be heavily dependent on having a reliant and secure internet connection. What happens if part way through the process you lose your internet connection, will that mean you have to start the application again?

Furthermore, despite the new system being an online based process, there will still be a requirement to post the Will and Statement of Truth/Legal Statement. Although the online process will generally speed up the process and save time and resources, this requirement is likely to achieve the opposite effect. Having said that this requirement removes the need for clients to swear on oath in person in an intimidating Court setting which will certainly help client’s feel more reassured.

There are also talks of making all copy documents/scans a requirement. This is likely to cause some issues with regards the question of validity of documents. If only copy documents/scans are required? Then how do you know for sure that the document has not been tampered with. Effective safeguards need to be put in place to protect vulnerable clients and fraudulent applications being made. We fear that if only copy documents are required in the future this may lead to an increase in improper wills and subsequently an increase in estate disputes. 

All in all, mandating online applications for probate looks promising. By creating a new modernised way of making the applications, Grant of Probate or Letters of Administration should be received at an earlier time meaning that probate practitioners can concentrate on progressing the file and assisting their clients complete the process in a more efficient and effective way. As long as any technical issues are addressed the new system is likely to be an excellent way of saving time and resources and allow practitioners to progress probate files expeditiously. However, any advancements in technology must safeguard the interests of the most vulnerable and unless all concerns regarding safeguarding those individuals are properly addressed then we are hesitant for all probate applications to be made entirely online. 

If you would like a free consultation to discuss your Will or Probate matter, please contact a member of the team on 01753 486 777.