Professional bodies respond to proposed probate fee increases in England and Wales

Thursday, 23 September 2021
Consultation closes today on the Ministry of Justice's proposal to align probate fees in England and Wales to a single fee of GBP273 for all applicants.
Probate paper form

The current fees are GBP155 for professionals and GBP215 for non-professionals. The proposed single charge of GBP273, payable only on estates whose value exceeds GBP5,000, is set at a level to cover the costs of delivering the service and would not generate a profit, although it would reduce the subsidy that HM Courts and Tribunals Service (HMCTS) needs to operate the service, says the government.

Moreover, the Ministry of Justice says the discrepancy between professional and non-professional applicants for probate is unjustified, on the basis that HM Treasury's Managing Public Money handbook asserts that all users should pay the same fee for the same service. The current fees date from a time when applications from non-professionals still created extra administrative work for the Probate Service, but the Ministry of Justice says this is no longer the case.

However, in its response to the consultation, STEP disagrees with the abolition of the distinction between professional and non-professional applicants' fees. It believes that removing the cost difference between professional and non-professional applications will lead to an increase in work for HMCTS. If the estate is being administered by a professional and the requisite estate searches and checks have been carried out then the application has a far lower risk of containing any mistakes or errors that HMCTS will subsequently need to spend time investigating, STEP notes.

'The complexity of preparing a probate application should not be underestimated, nor should the expertise and value that professionals bring to the process,' comments Emily Deane TEP, STEP Technical Counsel.

Although STEP regards the proposed 'modest' fee increase as acceptable, it also notes that it is being proposed at a time when the service provided has faced significant criticism and challenges that have impacted the confidence of the consumer. ‘We suggest that these inadequacies should be addressed before a fee increase is introduced,’ says Deane.

The Law Society of England and Wales (the Law Society) is also critical of the proposal. 'We query why government has decided to increase fees at this time', it says in its response. 'Any increase in fees now should be reflective of new and tangible improvements made to the service. ... We would recommend putting in place a review of the fees in a few years once online probate is the norm across applications and once the immediate effects of the pandemic have settled.'

The Law Society also suggests that a minimum service level standard should be set for individual applications so that, if the service drops below that standard on an individual application, there is an automatic reimbursement of a percentage of the fee to the applicant.

It also echoed STEP's concerns about equalising the fee between professionals and lay persons. 'Professional advice at the start of the [probate] process can prove hugely beneficial, both financially and emotionally', it says. 'It is therefore worth considering whether setting the fee at the same level for both personal and professional applicants might disincentivise those who would benefit from professional advice ... The reality is that having an application handled by a professional with the requisite expertise would mean people are less likely to incur costs down the line as a result of an incorrect application that gets stopped.'

Subject to the outcome of the consultation and any final decision taken on the proposals, the Ministry of Justice intends to implement revised fees in early 2022.

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