Excessively long probate delays leave beneficiaries waiting
Families are facing significant delays in the processing of the estates of deceased relatives, with waits sometimes approaching two years.
Sources familiar with the issue blamed the pile-up in the Supreme Court on a lack of staff and insufficient resources.
Figures released by the probate department last night showed that 115 cases were outstanding.
While the vast majority of those — 85 — were filed this year, 29 cases from last year have yet to be processed, while a further two date back to 2019.
Bermuda’s probate procedure closely follows that of Britain and can take time if the estate is unduly complex.
However, one executor, who said they were attempting to probate the estate of someone who died late last year, called the delay on a straightforward procedure “ridiculous”.
“I and my legal advisers submitted the necessary paperwork to the registry earlier this year,” the source told The Royal Gazette.
Requesting anonymity, he said: “When we contacted the registry a couple of months later to check on progress, we were effectively told that they were well over a year behind in processing probate applications.
“I was shocked. The situation is ridiculous. There is obviously a lack of resources and investment in the Supreme Court Registry in terms of ensuring probate applications are processed efficiently.”
The administrative hold-up blocked relatives from collecting their inheritance, he said.
“The assets in a deceased's estate are frozen until a grant of probate has been granted, meaning that the beneficiaries of the estate cannot access those assets in the interim.”
He added: “We are fortunate in that the beneficiaries in our case do not need access to the frozen assets in order to live.
“But there must be lots of beneficiaries out there who are not in so fortunate a position.
“I think those that administer the judiciary in Bermuda have a moral duty to ensure estates are probated quickly so that inherited assets are released to intended recipients in good time. But based on the current situation, I don't think that duty is being met."
Another senior legal source, who requested not to be identified, said the processing of probate, once handled in a matter of weeks, had fallen to seven or eight months because of staffing challenges during the height of the pandemic.
But it was now said to be at least a year for families waiting to get assets released, with some cases running up to 18 months.
Staffing problems were blamed.
The allocation of court resources was sharply criticised in 2018 by the Chief Justice at the time, Ian Kawaley, who issued a joint statement with Alexandra Wheatley, then the Acting Registrar and now Registrar, calling the staffing levels “deplorable”.
The statement said the Judicial Department was subject to “a relentless staffing crisis” that impaired its ability to function and threatened the island’s business reputation.
The two said resolving the problem was “in the hands of the Honourable Attorney-General and Minister of Legal Affairs who is the minister with responsibility for the judicial department”.
Last night, the Registrar for the Courts of Bermuda confirmed that the department had a recent history of staff shortages.
But Ms Wheatley added that steps had been taken to reduce the backlog.
Pointing out that probate law could be highly complex, she said: “The probate division has been understaffed. However, temporary relief administrative staff were taken on in November and December 2021 for the sole purpose of processing probate applications.
“These temporary posts were only filled for six and nine months respectively as the staff decided to take other opportunities offered to them.”
Ms Wheatley said that the post of probate administrative assistant was still vacant, but it was hoped that the recruiting process would begin by the end of the year.
She added: “In the interim, we have one temporary relief who is assigned to probates who has been with us since February 2023.
“Given the intricacies and significance involved in reviewing all probate applications, full training and development of the legal knowledge required takes approximately six months for each member of staff as all administrative staff who come to the probate division have never processed probate applications.”
“The ultimate goal is for applications to be reviewed within two months of being received, if not sooner, as we understand the emotional, familial component involved in these applications where the delays have caused a great deal of frustration.
“In order to accomplish this, the courts intend to create editable, electronic forms which must be used to submit all applications. The use of the forms will drastically reduce, if not eliminate altogether, errors made that are in noncompliance of the probate legislation, which is by far the most time-consuming part of the review process.
“A more efficient, electronic process will also be considered for CILG Applications. In the interim, attorneys continue to be advised that if an application is urgent that a request for the application to be prioritised can be made to myself, as Registrar, setting out why the request is being made for the application to be expedited. One example of prioritisation of an application being given is if there is a pending sale of property.
“The courts are immensely appreciative of the continued patience and understanding attorneys as well as members of the public have provided to date and can be assured that we are doing the utmost to reduce the current backlog as well as to modernise the process.”