A controversial hike in probate fees has been rushed through the House of Commons as part of the legislative scramble before the general election.
Only weeks ago a Commons committee warned that the Justice Secretary does not have the power to impose fees which are, in reality, a tax on the value of the deceased’s estate. The order will be considered by the House of Lords on Monday.
The fees hike will scrap the current flat fee of £155 and replace it with fees calculated against the value of the estate starting from £300 and rising to £20,000 for estates worth over £2 million.
The government has justified the fee increase on the grounds that it will help to fund the Court and Tribunals service in general. Because the fee does not relate directly to the work done by the probate registry the fee has been heavily criticised as a tax by another name.
The new fee will create additional difficulties for bereaved families as they will have to find money to pay it before they can access the deceased’s assets.
If the fee increase is passed by the Lords it is due to take effect at some point in May, but could then be open to legal challenge.
It looks likely that the fee increase will come into force, but a change in government or a legal challenge could mean it has an uncertain future.
Regulations to give effect to the highly unpopular probate fee increases, which were announced on 18 February 2017, were rushed through parliament yesterday (19 April 2017). In adopting it, the government has not taken into consideration the criticism the House of Commons Joint Committee on Statutory Instruments (SI Committee) published, on 29 March 2017, about the order... In association with the Law Society of England & Wales, STEP has now obtained a legal opinion on whether the proposed Non-Contentious Probate Fees Order would be intra vires under the terms of the empowering legislation, from Richard Drabble QC, a leading expert in the field of public law. His view is that 'the doubts expressed by the SI Committee are soundly based, and the proposed order would be outside the powers of the enabling act'.