The Government has bowed to pressure from families, taxpayer groups and probate solicitors by announcing a U-turn on its plans to increase probate fees – a move which had been branded as a “stealth tax”, a “death tax”, and an “abuse of power” by assorted critics, including MPs.

There was also criticism regarding the legality of the fees, with some claiming that they were being pushed through via statutory instrument without the parliamentary scrutiny that is typically required. Furthermore, the fees were not proportional as the cost of administering a Grant of Probate does not depend on an estate’s value.

Some MPs and even members of the House of Lords openly questioned whether the plans were lawful, as Government departments cannot levy charges in excess of the service they provide without special permissions.

A welcome relief

It will doubtless come as a welcome relief to families at the time of bereavement, particularly to those estates that would have been due to pay £6,000, an additional 3,770 percent. However, estates valued at less than £50,000 would have been exempt from fees under the proposals; as it stands, only estates valued below £5,000 will be exempt from fees.

The probate fee proposals, announced in November 2018, would have seen a whole new probate fee structure come into force across England and Wales, with the flat fee of £215 being replaced with a sliding scale in which more valuable estates would have been subject to more costly fees. Estates valued between £50,000 and £300,000 would have had to pay £250, while estates valued at £2 million or more would have had to pay £6,000.

The government had claimed that the fees were a “fair and more progressive” structure, yet in reality it seemed they were a thinly-disguised revenue-raising exercise designed to bring the courts an additional £185m a year by 2022-23.

The move to abolish the fees is hardly surprising; they were originally earmarked for April but were indefinitely delayed due to widespread controversy and opposition. The next review of probate fees will now take place as part of the annual standard assessment of family and civil court charges.

A spokesman with the Ministry of Justice commented, “Fees are necessary to properly fund our world-leading courts system, but we have listened carefully to concerns around changes to those charged for probate and will look at them again as part of a wider review to make sure all fees are fair and proportionate.”

Oratto’s view

The decision to abandon the proposed probate fee structure is a welcome relief. Most probate solicitors and experts knew exactly what it was: an ill-conceived revenue-raising exercise that amounted to little more than a tax on grief.

Effectively, bereaved family members would have been subsidising other areas of the courts and tribunal service which is unfair and unjust in the most unpleasant and spiteful way because bereaved families have no other option than to apply for probate when a loved one dies.