Property sales falling due to delays in probate services, law firm claims

Property sales are falling through due to lengthy delays in probate services, a law firm has claimed in a letter to the head of the Courts Service threatening legal action unless moves are taken to remedy the situation.

Solicitor Frank Murphy said the delays in issuing a grant of probate had led to sales not proceeding, while also slowing access to mortgage funds and other accounts frozen following a death.

“The delays, in our experience, add unnecessary additional difficulties to what is, following a death, a stressful time without parallel,” he said in a letter to Angela Denning, chief executive of the Courts Service, a copy of which was seen by The Irish Times.

Mr Murphy said unless a system was brought in to ensure a faster granting of probate certs in certain circumstances, his firm would issue judicial review proceedings against her office.

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The Courts Service has said probate waiting times have dropped by two weeks since earlier this year, and that work is now beginning on establishing an electronic filing system.

Probate is required to give lawful authority to deal with a deceased person’s estate. Aspiring homebuyers with mortgage approval can run into problems if they find probate has not been obtained at the point of agreeing a sale.

In his letter, Mr Murphy points out that probate certificates could previously be expedited in cases where the service was advised of urgency in a pending property disposal.

However, he said this no longer appeared to be the case, pointing to the Courts Service website which states the Probate Office will not speed up applications “unless there are exceptional circumstances. House sales are not regarded in themselves as exceptional events.”

Other consequent difficulties outlined in the letter included the case of a deceased’s estate becoming liable to interest on owed nursing home fees, and an inability to pay school fees.

“It is an imperative, for the coherence of the system of probate, and so that property can move as freely as possible, and that those who have contracted to transact property can do so with an appropriate level of speed and certainty, that the system of probate expedition be restored without further delay,” Mr Murphy wrote.

The Courts Service acknowledged receipt of the letter. On the issue of probate delays, a spokesman said its Dublin office, and several other local offices, experienced fluctuations in processing times depending on a number of factors including demand and the availability of trained staff.

“Waiting times in the Probate Office had unfortunately increased in the last number of months due to a number of staff retirements in the Probate Office,” he said. “New staff have joined and are now trained. They are already helping to reduce waiting times.”

This currently stands at 10 weeks in personal applications. New solicitor applications take about 17 weeks, although that is down from 19 weeks earlier in the year.

Delays are often put down to errors on the part of solicitors, and the Courts Service noted the above waiting time apply only when filed papers are error free. It has previously reported an error rate of as much as 60 per cent.

According to the Courts Service, properties are being placed on the market for sale and contracts exchanged “in circumstances where the solicitor should know that a grant of probate is required”.

“Many occasions have arisen where house sales have reached this point and applications have not been made,” the spokesman said. “It is a matter for the legal representatives for both parties to a house sale to inform their clients of these issues.”