Committee criticises Government for disproportionate increase in probate fees

Background

Every year around 270,000 estates apply for non-contentious probate –  that is, authorisation to distribute a deceased person's finances, property and assets according to their will.

Under the proposals in the Draft Non-Contentious Probate Fees Order 2018, from April 2019 the Government is proposing a sliding scale of probate fees based on the value of the estate, with seven-bands from zero to £6,000 – even though the current cost of the administration will drop slightly.

The Government first proposed a scale of fees rising to £20,000 for estates worth more than £2 million in 2017. At the time, the Committee argued that to charge a fee so far above the actual cost of the service amounted to a “stealth tax” and therefore a misuse of the fee-levying power. Those original regulations were not subsequently put forward for debate in the Lords.

Although, in this new version, the scale of the individual fees has been reduced, the Committee has not changed its view on the underlying principle, that is that the fee bears no relationship to the actual cost of approving the probate application and has the appearance of a tax.

Alongside the affirmative Order, the Ministry of Justice has also laid the Non-Contentious Probate (Amendment) Rules 2018 (SI 2018/1137), a negative instrument which modernises and improves the efficiency of the probate service and is welcomed by the Committee.

SLSC Sub-Committee A Report

In its 6th Report published today, the Secondary Legislation Scrutiny's Sub-Committee A said:

“That the draft Ministry of Justice Order seeks to increase these fees by so much at the same time as laying the Rules (SI 2018/1137) that will reduce the unit cost of an application by an average of £9.30, only serves to highlight the Committee's concerns about the disproportionate increase in the fee levels proposed by the affirmative instrument.”

The full version of the 6th Report can be found on our publications page.