Still waiting for probate? Here’s what you can do

Probate delays can leave executors in a difficult position, particularly when an estate includes an empty property. The application may have been submitted months ago, but the Grant of Probate has still not been issued, while insurance, council tax, utilities and maintenance costs continue to accumulate.

For families dealing with the death of a parent, the delay can add considerable financial and practical pressure at an already difficult time. It can also create uncertainty about what executors are legally allowed to do with the property while they wait.

Although a property sale will usually require a Grant of Probate before it can complete, executors do not necessarily have to wait for the grant before taking steps towards a sale.

If your probate application has been outstanding for longer than expected, there are four practical steps we would consider before looking at more complicated legal options.

Step 1: Check that the Probate Registry is not waiting for you

Before trying to escalate an application, make sure there is nothing outstanding at your end.

Check the most recent correspondence relating to the application and confirm that HMCTS has received everything it has requested. If you used a solicitor or probate practitioner, ask them to confirm the current position and whether the Probate Registry has raised any queries.

It is possible for an application to appear delayed when the Probate Registry is actually waiting for further information or documentation. Before chasing the application, you want to establish that the next action sits with HMCTS rather than with you.

If you applied yourself and are unsure of the position, you can contact the Probate Service Centre and ask for an update on the application. HMCTS currently provides both telephone and email contact details for probate enquiries. (Find a Court or Tribunal)

Step 2: Ask for the application to be expedited

If HMCTS has everything it needs and the application has been outstanding for a significant period, the next step is to ask whether the case can be expedited.

It is worth explaining why the delay is causing a genuine problem rather than simply stating that you would like the application dealt with more quickly.

An empty property may be continuing to incur insurance, council tax, utility and maintenance costs. Its condition may be deteriorating while it remains vacant, particularly if repairs are required. There may also be a buyer waiting to proceed, or another financial reason why a prolonged delay could cause a loss to the estate.

Set out the circumstances clearly and provide evidence where you can. If you have already requested that the application be expedited, keep a record of when you made the request and any response you received.

An expedited request does not guarantee that the application will immediately be dealt with. As the original case highlighted, executors can sometimes be told that a file has been expedited and still find themselves waiting weeks later.

Step 3: Make a formal complaint

If repeated enquiries and requests to expedite the application are not producing any progress, the next step is to consider a formal written complaint to HMCTS.

This is different from making another telephone enquiry. A formal complaint creates a written record of the delay and gives you the opportunity to explain how the administration of the estate is being affected.

Include the probate application reference, the date the application was submitted, details of previous correspondence and any occasions on which you were told the application had been expedited. You should also explain the practical or financial consequences of the continuing delay.

HMCTS has an official complaints process and currently states that it aims to respond to complaints within 10 working days. If you are unhappy with the response, there is also a further review process. (GOV.UK)

Make a complaint to HM Courts & Tribunals Service

Step 4: Write to your local MP

If the application remains unresolved after you have followed the usual routes, you can consider contacting your local MP.

MPs can make enquiries with government departments and public bodies on behalf of their constituents. Parliament itself identifies problems involving treatment by a government office or agency as one of the circumstances in which someone may wish to contact their MP. (Parliament News)

When writing to your MP, explain the situation simply. Include when the probate application was submitted, how long you have been waiting, the steps you have already taken and the impact the delay is having on the estate. You should also include your address so that the MP can confirm that you live within their constituency. (Parliament News)

Find and contact your local MP

From our experience, working through these steps can help when an application appears to have become stuck. There is no guarantee that escalating a case will result in an immediate grant, but establishing that HMCTS has everything it needs, explaining the consequences of the delay and creating a clear written record gives you a much stronger basis for pursuing the application.

Can you sell the property while waiting for probate?

Executors can usually begin preparing and marketing an inherited property before the Grant of Probate has been issued. They can obtain valuations, instruct an estate agent or speak directly with potential buyers, market the property and consider offers.

The important limitation is that the sale will normally be unable to complete until the grant has been issued. This means that an executor may be able to agree a sale subject to probate, but the legal transfer of the property to the buyer will usually have to wait.

For an empty property, beginning this process before probate arrives can be useful. A vacant house can continue to generate costs through insurance, council tax, utilities, security and general maintenance, and its condition may deteriorate if it remains unoccupied for a prolonged period.

Executors therefore do not necessarily need to treat a probate delay as a reason to postpone every decision about the property. The waiting period can be used to establish its value, understand its condition, decide whether repairs are worthwhile and consider the most appropriate way to sell.

What if you find a buyer before probate is granted?

If a suitable buyer is found but a prolonged probate delay is preventing the sale from completing, there is a less common legal option that may be available in certain circumstances.

An executor can potentially apply for a limited grant known as a Grant ad colligenda bona. This type of grant is intended to allow specific estate assets to be collected or preserved before the full Grant of Probate has been issued.

In an appropriate case, it may allow an inherited property to be sold and the proceeds of the sale to be collected. However, it does not replace the full Grant of Probate and does not generally allow the sale proceeds to be distributed to beneficiaries while the wider probate process remains outstanding.

A limited grant will not be appropriate simply because an executor would prefer to sell the property sooner. Its suitability depends on the circumstances of the estate and the reason the asset needs to be dealt with, so executors considering this route should take advice from a solicitor experienced in probate.

Preparing the property while you wait

The distinction between being unable to complete a sale and being unable to do anything with the property is important.

While probate is being processed, executors can use the time to obtain valuations, understand the property’s condition, decide whether any work should be carried out and speak to potential buyers. They may also be able to market the property and agree a sale that remains subject to probate.

Doing this work in advance can mean that the property is ready to progress once the grant is issued, rather than beginning the entire sales process at that point.

For families already facing a lengthy delay, this can help reduce the amount of additional time that an inherited property remains empty and continues to generate costs.

Dealing with an inherited property during probate

At Augusta Probate, we work with executors and families who are trying to decide what to do with an inherited property while the wider estate is still being administered.

Some properties are ready to be sold immediately, while others require work or have been sitting empty for a considerable period. In other cases, probate delays simply make it difficult for the family to know when they should begin making decisions about the property.

Understanding what the property is worth and what routes to sale are available can help executors prepare while probate continues, even if the transaction itself cannot yet be completed.

If you are dealing with an inherited property and probate is taking longer than expected, Augusta can help you understand the property’s position and the options available when you are ready to sell.

This article is intended to provide general information and does not constitute legal advice. Probate circumstances vary between estates. Executors experiencing significant probate delays or considering a limited grant should seek advice from a qualified probate professional or solicitor.