New Probate Fees – has the Lord Chancellor acted beyond her powers?
7 April 2017 by Andrea Godfrey
The Ministry of Justice last month announced a drastic increase in probate fees. When someone dies and probate is required, these fees are payable by the executor appointed in the Will (or administrators if no Will). They have to pay in advance as probate cannot be granted until the fee is paid although they can reclaim the amount from the estate later. The fee is paid to the Probate Registry (part of the High Court). The work carried out by the Registry when they receive the application is in essence an administrative job.
Currently a flat fee of £155 is payable upon a probate application made by a solicitor. The fess have increased so drastically in fact that in some cases the fee increases as much as 128 times. The current fee is set at £155 but the new fees are based on the value of the estate and are:
Value of estate Proposed fee
Up to £50,000 £0
More than £2m £20,000
However, the MOJ’s plans may be in jeopardy as a result of the Parliamentary Committee. The Committee is appointed to consider statutory instruments made in exercise of the powers granted by an Act of Parliament. According to the Committee, the Lord Chancellor may be overstepping her powers as the probate fees appear to ‘have the hallmarks of taxes rather than fees’ – i.e she was imposing a tax rather than a prescribed fee. The changes proposed mean that the fee is calculated on the value of the deceased’s estate rather than the work carried out by the Court in issuing the probate and any issues of taxation have to have Parliament’s consent.
The Committee stated they have a “real doubt as to whether the Lord Chancellor may use a power to prescribe non-contentious probate fees for the purpose of funding services which executors do not seek to use – namely those provided by courts and tribunals dealing with litigation. Applying for probate is not to be compared with the commencement of proceedings.”
The Ministry of Justice advised that the new fees would be payable as of May 2017, but now we will have to wait and see how they respond to the Parliamentary Committee.