The proposed increase in probate court fees may now be delayed, if not abandoned, after stumbling at their final hurdle. The parliamentary committee on statutory instruments have said that the Lord Chancellor might be “acting beyond the enabling powers…because she would, in substance, be imposing a tax on estates rather than prescribing probate fees”. As they said: “It is an important constitutional principle that there is no taxation without the consent of Parliament” and so the ball is now firmly back in the government’s court.
When responding to the Ministry of Justice (MoJ) consultation last year and to their subsequent decision to go ahead with the increases, despite overwhelming opposition, many people argued that this was more in the nature of a tax rather than a fee on the basis that the current fee recovers the full cost of running the Probate Registry and the new fees were disproportionate to the cost of the service provided. And it seems that the committee agrees.
The committee also questioned whether it was appropriate for the Lord Chancellor to use these powers to raise money (anticipated to be over £300 million) to be used in other parts of the court and tribunal service – that are not used by executors.
Probate Fee Levels
Current fees are £155 for a probate application made by a solicitor and £210 for an application by an individual. The new fees would apply whether made by an individual or a solicitor, but were to be levied on a progressive basis as follows:
Value of Estate Proposed Fee
Up to £50,000 £0
£50,000 – £300,000 £300
£300,000 – £500,000 £1,000
£500,000 – £1m £4,000
£1m – £1.6m £8,000
£1.6m – £2m £12,000
Over £2m £20,000
A progressive fee might be acceptable up to a point, despite the fact that there is no more work for a £5m estate than a £50,000 estate as far as the probate registry are concerned. However, the committee referred to the charges being “disproportionate to the service provided” with fees at the top end increasing by nearly 13,000%.
The new fees were due to start sometime in May 2017. While the MoJ say their plans remain unchanged, it seems likely that they will be delayed at the very least, and hopefully, they may now reconsider these draconian increases and not impose such significant additional death taxes on the bereaved. It does seem somewhat illogical to be giving with one hand – the new Residence Nil Rate Band – and taking away with the other.