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11 December 2018 | Comment | Article by Eleanor Evans TEP

Increase to probate fees – new legislation may be defective

The Joint Select Committee on Statutory Instruments has reported to Parliament on the draft legislation that will introduce steep increases to probate fees; these are the fees that are payable to the court for obtaining a grant of probate.

Currently, there is a flat fee of £155 for probate applications by solicitors, or £215 for applications by individuals. The new draft legislation that has been laid before Parliament by the Ministry of Justice proposes a new banded structure. Fees will be based on the values of estates and range from £250 for estates valued from £50,000 – £300,000, up to £6,000 for estates over £2 million.

The Committee’s opinion is that the legislation makes unexpected use of the Ministry of Justice’s power. There is also doubt as to whether the Ministry of Justice even has the power to make these changes.

The Committee’s report states that the Lord Chancellor has power to prescribe a “fee”, but that the concept of a fee is limited; in particular, a fee should be proportionate to the service being delivered. The Committee are also of the view that the charges proposed in the draft legislation have the hallmarks of a taxation measure, rather than a fee.

The Committee raised similar concerns in relation to the increases to probate fees that were initially proposed in 2016, but did not take effect in 2017 as planned.

For further information on what the changes to probate fees may mean for you, please contact our team of experts.

Author bio

Eleanor is Head of the Trusts and Estates Administration Department, a large team dealing with estates and trusts administration on behalf of financial institution and trust corporation clients.  Eleanor is a specialist in wills, probate, tax and trusts, and is a full member of STEP (the Society of Trusts and Estates Practitioners).  She is also a committee member of the STEP Wales branch.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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