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 introducing a fee structure for applications for grants of probate (or letters of administration) based on the value of the estate; increasing the threshold below which no fee is payable for applications for grants of probate from £5,000 to £50,000; and removing applications from the general fee remissions (‘help with fees’) scheme.
Using a statutory power to charge enhanced fees, the Government proposed fees set above cost recovery levels. The Government intended to use the additional fee income to subsidise other court costs.
The Government proposed seven fee bands, with the fee increasing in line with the value of the estate. Fees were to 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.
On 24 February 2017, the Government published its response to the consultation and confirmed that it would proceed with the 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 were 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, (the 2017 draft Order) intended to implement the Government’s proposals, was laid before Parliament on 24 February 2017. The Order required the formal approval of both Houses of Parliament to become law.
The 2017 draft Order was passed by Commons committee debate on 19th April 2017. However, there was not enough time for the Order to complete its passage through Parliament due to the General Election in June 2017. The 2017 draft Order has now been withdrawn.
The House of Lords Secondary Legislation Committee and the Joint Committee on Statutory Instruments drew special attention to the 2017 draft Order.
On 5 November 2018, junior Justice Minister, Lucy Frazer announced revised proposals. She said that a new statutory instrument had been laid before Parliament which would implement a banded structure of fees for a grant of probate. The new proposed fees are lower than those proposed in 2017.
Lucy Frazer said that the Government had listened to the concerns expressed about the fees previously proposed, and had revised the amounts so that they would now never be more than 0.5% of the value of the estate. She stated that all income raised would be spent on running the courts and tribunal service.
The draft Non-Contentious Probate Fees Order 2018, (the 2018 draft Order) was laid before Parliament on 5 November 2018. It would introduce a new regime of fees for applications for a grant of probate, with a banded structure based on the value of the estate. In short it would:
The 2018 draft Order would apply to England and Wales only. It will need the formal approval of both Houses of Parliament to become law.
The Government estimates that the revised proposals would generate over £145 million in additional fee income in 2019/20, rising each subsequent year in line with increases in estate values.