It costs HOW much? The Government’s consultation on changing Probate fees

By 8th August 2016 Probate No Comments

It costs HOW much? The Government’s consultation on changing Probate fees

A Government proposal was recently floated to change Her Majesty’s Courts and Tribunals Service (HMCTS) fees for Probate. The Ministry of Justice argued that it was a necessary means of raising revenue for the courts, whilst keeping poorer estates away from otherwise costly fees. However, SWW Trust Corporation responded with harsh criticism to the proposals, saying that they were unnecessary, harmful and potentially unlawful.

From 18 February to 1 April this year the Government ran this consultation paper, proposing to reform the fee payable for an application for a Grant of Probate. The proposed fee regime would move from a flat to a banded fee approach, rising with the value of the estate; and would increase the value of the estate below which no fee is payable from £5,000 to £50,000, lifting approximately 30,000 estates out of paying any fee. The proposals were intended, the Ministry claims, to be “fair and progressive.”

Ultimately though the aim was to increase fees for the majority of estates, without an Act of Parliament, potentially to costs of £20,000 for some cases.

“Court fees are never popular,” that Ministry stated, “but they are necessary if we are, as a nation, to live within our means. These proposals would raise around an additional £250 million a year, which is a critical contribution to cutting the deficit and reducing the burden on the taxpayer of running the courts and tribunals.”

The Trust Corporation responded to the paper with strong criticisms. One concern is that some property-rich, cash-poor estates would have extraordinary difficulty finding thousands of pounds to pay HMCTS just for the Grant application. Secondly there is the concern that the proposals themselves would be unlawful on public law grounds, being either unreasonable, for improper purposes or indeed ultra vires (beyond the powers) of statutory authority.

Underlying it all, though, is the fact that the Government will not be aiming to invest its own funds in the Ministry, which must instead fill its coffers from bereaved individuals who have no alternative but to seek the courts’ assistance in Probate. A captive, unwilling public is being charged a price far greater than the court’s own costs in administering to these applications. It is effectively an indirect, unlawful taxation, seeking to make profit from a public service, from a Government that otherwise boasts of providing relief from inheritance tax for thousands of families.

Whether the proposals will proceed is currently uncertain. There has yet to be a formal response to the consultation exercise. SWW Trust Corporation will monitor the outcome and issue further updates in due course.

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