Many of our continental neighbours have a very different process. The various civil codes set out in detail how, and to whom, assets are passed. Succession takes place seamlessly, and with very limited State intervention.
One aspect of the probate process that hasn’t changed over the centuries is the reliance on paper at the core of the process. The trees of the world would probably be grateful for any change in that aspect.
The Courts Service has been looking at technology to modernise the process, but no formal decision has yet been made in that regard.
The vast majority of applications for probate are made by solicitors. Less than 10% of applications are made by personal litigants. Intestacy applications have reduced steadily over the years, and now form less than 10% of all applications.
Over 50% of applications are now made to the Principal Probate Registry in Dublin. The District Probate Registries deal with the balance of applications.
In summary, the probate process is a long-established, paper-based system with well-established rules on entitlement administered through a State-funded series of offices.
Role of the probate offices
While probate offices have a variety of roles, the most important one is to assess applications submitted by solicitors. Staff are trained to assess applications by applying well-established laws and precedents.
The assessment process is designed to ensure that the person applying is the person who, by law, is entitled to extract representation.
Establishing title in most cases is relatively straightforward, as the entitlement is clear. The probate officer or the relevant county registrar decides on entitlement, subject to an appeal to the High Court if there is any doubt.
The probate offices do not provide legal advice. The probate offices do not provide solicitors with the appropriate title. The probate offices do not pre-assess papers unless the application is complex.
The probate offices do provide guidance to solicitors in applications where the deceased died domiciled outside of Ireland and Britain. The probate offices do provide assistance to solicitors in complex cases, unusual cases, or rarely seen applications.
The resources of the offices are always stretched, and certain work has to be prioritised. At all times, priority is given to the processing of new applications. This is to ensure that there are enough applications on hand in which grants of probate or letters of administration can issue.
To do otherwise would lead to a collapse in the entire system. This, of course, leads to delays in dealing with applications that are submitted on more than one occasion because of errors.
Current problems
So, what are the internal problems with the current probate system? I have already mentioned the delays in processing resubmitted cases.
It’s impossible to provide a world-class telephone service, correspondence service, and email service all at the same time. The resources just aren’t there. The Dublin office alone receives well over 2,000 items of post per month.
Our preference is to communicate by email, and when resources become scarce, email is prioritised.
We still receive considerable volumes of telephone calls, many of which are seeking information that is available elsewhere. Before ringing, solicitors should ask themselves whether the information could be obtained elsewhere, or whether it can be sought by means of an email.
There is a system for dealing with correspondence, most of which relates to applications already in the probate offices, or relate to new applications, and correspondence will always be dealt with.
There is no tracking system for applications, and it can be difficult to locate papers in a short period of time. This, I am sure, is frustrating for solicitors and for staff, but will not be resolved until an e-probate solution is in place.
We do not accept expedite applications. The reason is that the volume of expedite applications, if they were accepted, would make up over 50% of the grants issued every day – at least in Dublin. That would mean that the waiting times for applications where expedites weren’t sought would double.
It’s a fairer system if all of the energies of the probate offices are directed towards assessing new applications, leading to an overall reduction in waiting times for all new applications. Managing expedite requests also adds another function to offices that are already stretched.
The role of the solicitor
The role of the solicitor is to take instruct-ions from the client and, based on those instructions, to determine title and to submit a set of papers that will lead to the issue of a grant or letters of administration.
In advance of lodging papers, solicitors should ensure that the applicant is the person entitled, and ensure that the papers reflect that entitlement. In addition to their own training, solicitors have the resources of the Law Society available to them.
There is the ever-present ‘Mongey’ (Probate Practice in a Nutshell), which I am not in the least embarrassed to say is my own first resource.
There are a number of well-regarded textbooks available for more detailed explanations of succession law. The Law Society also publishes excellent manuals on all aspects of probate and estate planning.
In the same way as I rely on my own colleagues, solicitors equally should not be embarrassed seeking advice or guidance from their colleagues.
Solicitors are obliged to ensure that all staff in their offices who are working on probate papers are appropriately trained and supported, be they qualified solicitors or legal executives.
Papers should not be submitted unless they have been read through in advance of submission.
If errors occur in one application, those errors should not be repeated in subsequent applications. A former manager of mine had a policy of answering a question once – and it was up to the solicitor to remember the answer when confronted by the same question again.
As the saying goes: ‘Once is a mistake. Twice is a decision. More than that will not be forgiven.’
All lawyers should maintain precedents and understand the value of precedents. Probate offices keep detailed precedents and use them daily.
Improving the system
I hope that I have accurately set out the roles of probate offices and solicitors. It should be clear to anybody reading this article that the roles are interdependent.
A well-structured, well-managed, well-resourced probate office with well-trained staff should be capable of processing relatively large volumes of applications.
High-quality applications with all of the relevant documentation included makes processing that bit easier.
There have been many changes introduced within probate offices, which were all designed to make the process easier to understand and easier to navigate. These changes have included:
- New form of oath and bond,
- Revised fee structure,
- Abolition of affidavits of market value,
- Reduction in the need for valuations,
- New Revenue Online System, and
- Clearer guidelines on issues, such as testamentary capacity.
While a considerable amount of work has been carried out on the probate pages on the Courts Service website, further work needs to be done to ensure that they are a more reliable and useful resource for solicitors when making applications to the probate offices.
We are still working on a system of work that best suits the post-COVID environment. I have already spoken about our preference for email to be used as the principal method of communication.
We are working on improving our response to emails at present, and this work will improve the experience for solicitors following up on cases submitted to the probate offices. Particular focus will be placed on emails relating to queried cases.
Unacceptable error rates
I have actively pursued a policy of reducing the level of queries being raised by staff working in probate offices by setting parameters around query-raising, and by eliminating certain types of errors and, in other cases, reducing the number of queries raised on certain documents.
Despite these changes, the error rate on papers submitted remains stubbornly high.
In Dublin at present, the error rate on new applications is running at over 60%. The error rate on papers submitted for a second time is over 50%. In my view, this level of error is unacceptable in a general sense. More importantly, it is artificially increasing the waiting time.
The waiting time is directly linked to the error rate. The higher the error rate, the longer the waiting period. Although I can’t state this definitively, I believe that if the error rate were to reduce down to 20%, the waiting time would be nearer to one to two weeks.
The priority for probate offices is to process new applications. Resubmitted cases will take far longer to process.
The probate process itself has not changed much since the enactment of the Succession Act, but change has taken place within the probate offices in recent years. Aside from the development of an IT-based probate system, there may not be much change in the process itself from this point forward.
There is an urgent need to reduce error rates so that the waiting times for applications can reduce to a level that will satisfy all of those people reliant on the probate system.
The probate offices will look to see what further assistance can be provided through a more effective website. We will work on improving our communication processes using emails. We will continue to improve our internal processes.
Solicitors need to match that with a commitment to improve the quality of applications, which will reduce waiting times and make the overall probate experience a more satisfying one. It’s in both our interests to make the necessary changes to reduce waiting times and, ultimately, to provide a more efficient system for the citizens of the State.
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