Surge in probate cases taking more than a year: can you avoid delays?

The number of probate cases taking more than a year rose by 134% between 2020 and 2023, according to data obtained by wealth management company, Quilter.

A grant of probate is required before an estate can be distributed, but delays mean families are often left waiting months to access assets.

Changes to inheritance tax will bring pensions into taxable estates from April 2027, and Quilter has warned this could cause further hold-ups and added complexity.

Here, Which? explains how long the probate process should take and the knock-on effects delays have on families. 

New research reveals rise in probate delays 

The wealth management company Quilter has obtained new data about probate delays via a Freedom of Information request.

It found that in 2020, probate took more than a year to be granted in 587 cases. By 2023, this had risen to 1,371 cases – an increase of 134%.

The number of cases taking more than six months also surged, exceeding 10,000 in 2023 – more than three times the figure recorded three years earlier.

This data only covers up to March 2024, but in the first three months of the year, probate had already taken more than six months in 2,722 cases.

The table below shows how long probate took to be granted between 2020 and the first quarter of 2024.

Probate delays have also attracted the attention of the House of Commons Justice Committee, which launched an inquiry in October 2023.

The most recent update came last April when the Justice Committee met with professional bodies to discuss possible solutions. 

• Find out more: grant of probate explained

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What could happen if probate is delayed?

Probate is required for all but the smallest estates. Without it, executors aren’t able to distribute the assets of a person who has died.

Beyond the emotional strain of not being able to move on with your life, delays can have serious financial repercussions. Here are some of the things to watch out for:

Issues with IHT bills

You might find yourself in a catch-22 position when it comes to inheritance tax (IHT). 

A payment must be made before probate is granted – but you won’t gain control of the deceased’s assets until after it is issued. IHT bills have to be paid within six months of death. 

Banks can settle the bill directly from the deceased’s current and savings accounts (using an IHT 423 form), but if there isn’t enough to cover the amount, the executor may need to find the funds elsewhere.

If the full amount isn't paid within six months, HMRC will charge interest on the outstanding sum. The current rate is 7.25%, based on the Bank of England base rate plus 2.5%.

For assets such as shares, tax payments can be spread over 10 annual instalments. This means probate can be granted after paying just 10% of the bill upfront, although interest will apply to the remaining balance.

• Find out more: do you need to pay inheritance tax?

Property management problems 

If the estate includes a property, delays in probate can result in ongoing maintenance and insurance costs. 

Many home insurance policies reduce or withdraw cover if a property is left unoccupied for a set period, usually 30 or 90 days. 

Executors may need to arrange specialist unoccupied home insurance, which is typically more expensive.

For leasehold properties, service charges will continue, and if bills are unpaid, late fees could be added. 

• Find out more: how to administer an estate 

Problems selling the home

If you are waiting for a grant of probate, selling a property is likely to take longer, and potential buyers may be unwilling to wait.

While estate assets, including property, can be marketed during the probate process, they cannot be sold until probate is granted. 

A survey of legal professionals by the Society of Trust and Estate Practitioners (STEP), conducted between December 2023 and January 2024, found that all respondents had experienced a client's house sale falling through due to probate delays.

• Find out more: the cost of selling a house

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How long does a grant of probate take?

HM Courts & Tribunals Service (HMCTS) states that most probate applications should be granted within 12 weeks, but delays remain an issue for some families. 

The Ministry of Justice told Which? that most probate applications are being granted within eight weeks, with digital applications being processed in an average of 2.9 weeks. 

The MoJ added: ‘We are working to reduce waiting times for applicants. This includes training our staff to deliver further improvements, which has resulted in record numbers of grants being issued in recent months.’

Digital and paper applications

According to the latest HMCTS Management Information (covering the period between July to September 2024), 80% of applications are processed digitally, but paper applications can take significantly longer, with an average processing time of 12 weeks.

If an application is stopped, often due to missing documents or inheritance tax issues, it takes much longer to process. For example, paper applications that were stopped took an average of 23.2 weeks to process.

The MoJ said there are currently 41,000 open probate cases, of which 9,000 are actively being processed and are not awaiting further documentation or information from the applicant.

• Find out more: If you need help or support, our Which? legal probate experts are on hand to guide you, step by step, through the process. Join the legal advice service today. 

Can you avoid probate delays?

According to the MoJ, one of the main causes of probate delays is missing inheritance tax information, particularly when applications are submitted before tax matters are resolved with HMRC. 

Other common reasons include other missing documents and difficulties locating executors.

To minimise delays, ensuring a will is up to date and stored in good condition, free from rips, stains or staple holes, can help prevent applications from being flagged for additional checks.

Executors should carefully review all paperwork before submission, making sure inheritance tax requirements are met to avoid unnecessary hold-ups.

Applying online can also speed up the process, as digital applications are typically processed much faster than paper ones. 

You should seek legal advice early if you have a complex estate. 

For more guidance, Which? offers a probate checklist and access to expert legal advice for those handling estates.