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Government Scraps Unpopular Probate Fee Increases

The BBC has this morning reported that the government’s controversial plans to increase probate fees payable after death are to be scrapped due to lack of parliamentary time before the general election. 

These fees are paid to the HM Courts and Tribunals Service from the estate of a deceased person so that the personal representatives can obtain an order to administer the estate. They had been set to increase from £155 or £215 to up to £20,000 for estates in England and Wales from May.

Currently, there is a flat fee of either £155 (for an application made by a firm of solicitors) or £215 (for a personal application made by the personal representatives). There is currently no fee paid for estates under £5,000.

The controversial increases that the government planned to make are set out below:

  • the threshold below which no fee was payable was to be increased from £5,000 to £50,000, which would have meant that an estimated additional 25,000 estates per year would have paid a fee; and
  • the implementation of a sliding fee scale based on the value of an estate.  This would have seen estates with values between £50,000 and £300,000 incurring fees of £300, increasing to £20,000 for those valued over £2 million, which would have meant that thousands of estates would have paid significantly higher fees.

Earlier this month, a committee of MPs and peers (the SI Committee) questioned the legality of the changes, adding that the proposed fees were 'a tax' rather than fees, being far in excess of the amount necessary to cover the costs of the service.

STEP and the Law Society of England & Wales instructed Richard Drabble QC, a leading expert in the public law field, to comment on the legality of the changes. He commented that 'the doubts expressed by the SI Committee are soundly based, and the proposed order would be outside the powers of the enabling act'.

Nevertheless, regulations to give effect to the fee increases, were rushed through the House of Commons on 19 April 2017. However, it seems that these regulations have now been shelved as a result of the forthcoming general election.

It remains to be seen whether the Conservatives will seek to implement these changes if they are successful at the general election. We will keep you posted.