This Commons Library briefing paper considers the Government's previous proposals to reform probate fees by using a statutory power to charge fees set above cost recovery levels. These proposals have now been withdrawnJump to full report >>
This briefing paper considers the Government’s previous proposals to reform probate fees, which attracted widespread comment and criticism. The Government has now announced that it no longer intends to proceed with these proposals.
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. 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.
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.
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.
On 12 October 2019, Lord Chancellor and Secretary of State for Justice, Robert Buckland, announced that the Government was withdrawing its previous proposals to reform probate fees, and would keep the current system pending an annual wider review of court fees. On 16 October 2019, giving oral evidence to the House of Commons Justice Committee, Robert Buckland said, “Having reflected carefully on the matter, we feel now that we are in a position to make this announcement and revisit the issue as soon as possible, but on the principle of sustainability rather than taxing bereaved people”.
In 2016, the Government consulted on proposals to introduce a fee structure for applications for grants of probate based on the value of the estate; increasing the threshold below which no fee would be payable for applications for grants of probate; 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, with the intention of using 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. At that time, 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.
A large majority of the 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 confirmed that it would proceed with the proposals, subject to approval from Parliament. It 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 in February 2017. The Order required the formal approval of both Houses of Parliament to become law. The House of Lords Secondary Legislation Committee and the Joint Committee on Statutory Instruments drew special attention to the 2017 draft Order. There was not enough time for the Order to complete its passage through Parliament due to the General Election in June 2017 and it was subsequently withdrawn.
On 5 November 2018, Lucy Frazer, who was then a junior Justice Minister, announced that the draft Non‑Contentious Probate (Fees) Order 2018, (the 2018 draft Order) had been laid before Parliament, and that this would implement revised proposals. She said that the Government had listened to the concerns expressed about the fees previously proposed and had reduced the amounts. The 2018 draft Order proposed fees ranging from £250 for estates worth between £50,000 and £300,000, to £6,000 for estates worth more than £2 million. The 2018 draft Order would also have removed applications for a grant of probate from the generally applicable remissions scheme for courts and tribunal fees, while retaining the Lord Chancellor’s power to remit or reduce a fee in exceptional circumstances. Lucy Frazer stated that all income raised would be spent on running the courts and tribunal service.
The 2018 draft Order was to apply to England and Wales only and needed the formal approval of both Houses of Parliament to become law.
The House of Lords Secondary Legislation Scrutiny Committee (Sub-Committee A) drew the 2018 draft Order to the special attention of the House, on the ground that it gave rise to issues of public policy likely to be of interest to the House. The Joint Committee on Statutory Instruments also drew the special attention of both Houses to the 2018 draft Order on the grounds that, if it was approved and made, there would be a doubt whether it was intra vires, and that it would, in any event, make an unexpected use of the power conferred by the enabling Act.
On 18 December 2018, Lord Keen of Elie, Government spokesperson for Ministry of Justice business in the House of Lords, moved that the 2018 draft Order be approved. Lord Marks of Henley-on-Thames, Liberal Democrat Justice Spokesperson in the Lords, moved an amendment, intended to object to the draft Order becoming law. That motion was defeated on division by 187 votes to 90. The Lords then voted by 186 to 161 in favour of a non‑fatal motion to regret moved by Lord Beecham, Shadow Justice Spokesperson. The motion to approve the 2018 draft Order was agreed as amended.
The 2018 draft Order was considered by a House of Commons Delegated Legislation Committee on 7 February 2019. Lucy Frazer disagreed with the conclusions of the Joint Committee on Statutory Instruments and the House of Lords Secondary Legislation Scrutiny Committee. She said that the Government had authority to impose enhanced fees and was clear that there would be an application fee for a specific purpose, distinct from general taxation. Shadow Justice Minister, Gloria De Piero, spoke of “fierce opposition to these proposed changes, from legal experts, charities and legislative bodies”. On division, the Committee resolved that it had considered the 2018 draft Order by 9 votes to 8.
The Office for Budget Responsibility’s, Economic and Fiscal Outlook, published in March 2019, stated that the Treasury expected the Office for National Statistics (ONS) to classify the new fee structure as a tax in the National Accounts. The Ministry of Justice later reiterated that the new fee structure was not a tax, and that any ONS classification would be for accounting purposes only. The Joint Committee on Statutory Instruments had previously agreed that the ONS classification was not relevant to the question of whether there was power to make the proposed Order, but considered that this was a further indication that the Lord Chancellor was proposing to use the enabling power in a surprising way.
No date was ever fixed for the House of Commons motion to approve the 2018 draft Order. This motion fell when Parliament was prorogued on 8 October 2019. (It would not have been necessary to lay the 2018 draft Order itself again).