What are The Non-Contentious Probate (Amendment) Rules 2020 and why have they been introduced? Nicola Mawson of Stephensons Solicitors LLP explains the new Non-Contentious Probate Rules, which came into force on 2 November 2020.

What are the new Non-Contentious Probate Rules?

The Probate Service is part of HM Courts & Tribunal Service (HMCTS) and issues grants of representation to allow executors and administrators of wills to deal with the estates (money, property and possessions) of deceased people in non-contentious probate cases. This work had previously been governed by The Non-Contentious Probate Rules 1987. However, new rules came into force on the 2 November 2020 in the form of The Non-Contentious Probate (Amendment) Rules 2020.

The Probate Service issues around 260,000 grants each year with applications generally either being made by:

• individuals directly
• solicitors or other probate practitioners on behalf of individuals

Until 2017 applications by solicitors and other probate practitioners could only be made using a traditional paper-based system for applications. However, following the HMCTS reform programme, an online system of application has been developed, which has been available to all probate practitioners since October 2019.

The Non-Contentious Probate (Amendment) Rules 2020 aim to make the non-contentious and common form probate processes more efficient. As such, the new rules:

• make online applications mandatory (with several exceptions for more specialised applications) via MyHMCTS
• permit the use of witness statements as an alternative to an affidavit

Though the legislation came into force on the 2 November 2020, there is a grace period until 11 January 2021 when paper applications will still be accepted. This is to provide additional time for professional users to sign up for online accounts in preparation for the future submission of grants of probate applications via MyHMCTS.

Why have the Non-Contentious Probate Rules changed?

There are several factors why the Non-Contentious Probate Rules have changed, with perhaps the biggest being that the service needs modernising. In its consultation document entitled ‘Non-Contentious Probate Rules - Mandating online professional applications’, the Ministry of Justice stated that:

“…mandating the process will accelerate it and encourage users to adapt and take the necessary steps for the transition while helping to achieve the savings which HMCTS needs to deliver in fulfilling the requirements of the investment in the HMCTS reform programme… court and tribunal services are increasingly making this transition – there are similar moves to mandate professional user applications for the Asylum and Immigration chamber of the Tribunals Service.”

In addition to the modernisation of the current system the rules have changed in order to benefit both probate practitioners and HMCTS. It is thought that professionals will find the system to be more efficient and reliable with both time and costs savings. The system is accessible at any time and provides a secure means of making an application with an immediate receipt. In addition, applications online can be tracked and monitored, and online applications can be made by remote workers, which is key in the current COVID-19 crisis.

For HMCTS the online process represents a more secure and reliable system which offers cost savings, a range of efficiencies and provides a more flexible and user-friendly operating model. Historically processing times of online applications have been quicker than paper applications and moving from a paper-based system means costs of maintaining large archives of application documents are reduced while improving records storage and management. There are also lower running and operational costs.

When do professionals not need to use the new online probate system?

From 2 November 2020, there are a small number of probate processes where solicitors and other probate practitioners should continue to submit paper applications. These exceptions include (but are not limited to):

• where there are multiple applicants entitled under intestacy (where someone dies without a will)
• Grants to Attorneys, only where the attorney (a representative for a deceased person who was subject to a power of attorney order when alive) is not an existing probate professional able to use the online service
• Trust Corporation applications, as these must be made by officers of the Trust Corporation
• resealing under Colonial Probates Acts, as these applications continue to require an affidavit, rather than a statement of truth, and thus need to continue to be paper-based and posted to the Probate Service

The full list of exceptions is contained in the Third Schedule to the rules.

How should probate professionals prepare for the new Non-Contentious Probate Rules?

As there is limited time before the new rules come into force, it is key that all firms who use the Probate Service ensure they have registered to process payments via HMCTS Fee Account and registered as a professional court user on MyHMCTS.

While there is a grace period until 11 January 2021, after this time paper applications which have no exemption will be returned unissued to be submitted online.

About the author

Nicola Mawson is an associate solicitor in the probate department at Stephensons Solicitors LLP, who covers a broad range of private client work including wills, probate, lasting powers of attorney and Court of Protection.

See also

Using a caveat to prevent a grant of probate

What are the intestacy rules in England and Wales?

A guide to powers of attorney

Find out more

The Non-Contentious Probate Rules 1987 (Legislation)

The Non-Contentious Probate (Amendment) Rules 2020 (Legislation)

MyHMCTS: online case management for legal professionals (GOV.UK)

Non-Contentious Probate Rules - Mandating online professional applications (GOV.UK)

HMCTS Fee Account application form (GOV.UK)

Image: Getty Images

Publication updated: 7 December 2020

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.