Administration of justice

Probate fee reform resurfaces

In November 2018, the government signalled its intent to ‘implement a new, banded structure of fees for a grant of representation’.¹

About the author: Emily Deane TEP is technical counsel at the Society of Trust and Estate Practitioners.

Context

In February 2016, the Ministry of Justice (MoJ) issued a consultation paper on reforms to the fee system for grants of probate.² The paper proposed to radically increase the fee on a banded structure in accordance with the estate value, in some cases increasing the fee by 13,000% or £20,000 for larger estates.

STEP strongly opposed the new system on the basis that the proposed fee would be completely disproportionate to the service provided by the probate court, and would effectively be a new tax on bereaved families. (See also ‘Probate fee reforms: concerns from the frontline’, (2016) May CILExJ pp26 and 27). There was a great deal of public opposition to the new fee regime, and STEP obtained an opinion from Richard Drabble QC disputing the legality of the government’s proposal. To the relief of many, the MoJ announced, in April 2017, that there was not enough time for the Order to complete its passage through parliament due to the impending general election in June 2017 and the draft Order was withdrawn.

New probate fee proposals

However, on 5 November 2018 the government published a written statement flagging its intent to change the way probate fees are structured to fund reforms to the courts and tribunal service.³ Once again, the new proposals incorporate a banded system where higher value estates will pay a larger fee.

The government’s amended fee regime is less extortionate than last year’s proposal, although 85 per cent of estates - where probate applies - will still see a significant increase in fees. The new charges bear no relation to the cost of probate, and the additional income will be used to subsidise other courts and tribunals.

The government has failed to explain why it is choosing to place this burden on bereaved families, many of whom will have spent months or years paying expensive care fees for their elderly relatives. It is this demographic that has been singled out to shoulder the cost of the courts service via this additional tax, to be paid on top of inheritance tax and legal expenses.

STEP lobbying on this issue

We are asking parliamentarians to scrutinise these proposals in line with accepted parliamentary procedures as well as asking the MoJ to reconsider its strategy to fund the courts service to the detriment of the bereaved. Additionally, if the changes are made before 5 April 2019, it will exert pressure on practitioners to apply for grants prior to the deadline, clashing with the end of the tax year, causing chaos in the courts. STEP is particularly concerned about the fairness and practicality of the new regime as well as the legality of the government’s plans to try and introduce this measure without any proper debate via statutory instrument. STEP understands that currently it is planned to introduce the new probate fees in April 2019.