The UK government has put proposals in place to reform probate fees in England and Wales, using a statutory power to charge the fees above cost recovery levels. Executors and administrators need a grant of representation or a grant of probate in order to receive the assets of an estate, although this isn’t always necessary. It depends on the size of the estate and the types of assets in it.

At present, a probate application costs £155 if it’s made by a solicitor, and £125 if it comes from an individual. This applies if estates are worth £5,000 and upwards and they are set at cost recovery levels. In 2016, the government consulted about proposals to change the fees. It sought views on introducing a structure for applications for grants of probate or letters of administration based on the value of the estate. This would increase the level of threshold below which no fee is paid to £50,000 and remove the application from the help with fees scheme.

Additional fee income as subsidy

The government proposed fees set above cost recovery levels, with the intent to use the additional fee income to subsidise other court costs. It suggested seven fee bands with fees increasing in line with an estate’s value. The proposed fees were to start at £300 for estates worth between £50,000 and £300,000, and rising to a maximum of £20,000 for estates of more than £2 million.

In 2017, the government confirmed it would proceed with the proposals, subject to approval from Parliament. However, a huge majority of respondents to the consultation disagreed with the proposals. Opponents argued a fee shouldn’t be larger than the cost of delivering the service and that the new fees were a form of additional taxation. But the government argued they were necessary to ensure adequate funding for the court service and access to justice in the long term.

Revised proposals

Thanks to the general election in 2017, the order was not able to proceed through Parliament. The Junior Justice Minister Lucy Frazer announced revised proposals in November this year. She said the new fees would be lower than those originally proposed and never more than 0.5 percent of an estate. All income from the fees was to be used for running the courts and the tribunal service.

A draft order for the new fees was laid before Parliament on November 5. It sets out:

• increasing the estate threshold below which no fee for an application for a grant of probate occurs from £5,000 to £50,000
• introducing fees starting at £250 for estates worth between £50,000 and £300,000, and rising to £6,000 for estates worth more than £2 million
• removing applications for a grant of probate from the generally applicable remissions scheme for courts and tribunal fees
• retaining the Lord Chancellor’s power to remit or reduce fees in exceptional circumstances.

The government says that, under the new structure, “for those who pay, around 80 percent of estates will pay £750 or less and 60 percent of applicants will still be paying a comparable fee to what they pay now”. It estimates the revised proposals will generate more than £145 million in additional fee income in 2019/20.

The 2018 draft order will need the formal approval of both Houses of Parliament to become law.