This Commons Library briefing paper considers the Government's proposals to reform probate fees by using a statutory power to charge fees set above cost recovery levelsJump to full report >>
This briefing paper deals with the law in England and Wales. Scotland and Northern Ireland have separate processes for dealing with the estates of deceased persons.
Personal representatives – executors where they are appointed by a will, or administrators otherwise – are responsible for dealing with the estate of a deceased person. Their authority to receive the assets in the estate is proved by a grant of representation. A grant of probate is one type of grant of representation but the expression “grant of probate” is sometimes used as a generic term for all types of grant. In this briefing paper, the expression “grant of probate” includes other forms of grants of representation.
It is not always necessary to apply for a grant of representation. Much depends on the size of the estate and the type of assets it comprises.
At present, probate applications are charged a fee of £155 if made by a solicitor, and £215 if made by an individual. These fees apply to estates worth £5,000 or more. The fees are currently set at cost recovery levels.
In 2016, the Government consulted on proposals to reform probate fees. The consultation asked for views on:
Using a statutory power to charge enhanced fees, the Government proposed fees set above cost recovery levels. This, the Government has stated, will generate around £300 million per year in additional fee income, which will be used to subsidise other court costs.
The Government proposed seven fee bands, with the fee increasing in line with the value of the estate. Fees would start at £300 for estates worth between £50,000 and £300,000, rising to a maximum fee of £20,000 for estates worth more than £2 million. The Government has stated that, overall, 58% of estates will pay no fee at all and 92% will pay £1,000 or less. Some 0.5% of estates are said to be worth above £2million.
On 24 February 2017, the Government published its response to the consultation and confirmed that it would proceed with the consultation proposals, subject to approval from Parliament.
A large majority of the 853 respondents to the consultation disagreed with the proposal to charge a fee based on the size of the estate, and with the proposed new fee structure. Opponents argued, among other things, that the size of the fee should not exceed the cost of delivering the service; that the cost of delivering the service is the same regardless of the value of the estate; and that the new fees are excessive and would effectively amount to a form of taxation. In response, the Government said that the increased fees were necessary to ensure adequate funding for the court service, in order to provide access to justice in the long term.
The draft Non-Contentious Probate Fees Order 2017, intended to implement the Government’s proposals, was laid before Parliament on 24 February 2017. The Order requires the formal approval of both Houses of Parliament before it becomes law.
The House of Lords Secondary Legislation Committee has drawn the draft Order to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.
The Joint Committee on Statutory Instruments has also drawn special attention to the Order on the grounds that, if it is approved and made, there will be a doubt as to whether it is intra vires (within the scope of the power to charge enhanced fees), and that it would in any event make an unexpected use of the power conferred by the enabling Act.