Government changes E&W probate procedure without consultation

Emily Deane TEPThe government has announced amendments to the procedure for applying for probate in England and Wales, with less than a month’s notice. The Statutory Instrument (The Non-Contentious Probate (Amendment) Rules 2018) will come into force on 27 November 2018.

The Rules were laid as a negative instrument, meaning they don’t need the approval of Parliament and have already been signed into law by the relevant Minister. The instrument can be annulled by Parliament before implementation, but this is rare.

In brief the amended rules:

  1. allow personal online applications for probate to be made by an unrepresented applicant;
  1. enable all applications for probate to be verified by a statement of truth (instead of an oath) and without the will having to be marked (by the applicant, solicitor or probate practitioner);
  1. extend time limits in the caveat process, which give the person registering the caveat notice of any application for probate;
  1. allow caveat applications and standing searches (which give notice of grants being issued) to be made electronically;
  1. extend the powers of district probate registrars equivalent to those of district judges; and
  1. make further provision for the issue of directions (instructions to the parties) in relation to hearings.

The Probate Service has accepted online applications from personal applicants (individuals not represented by probate specialists) since earlier this year, with a view to making the system simpler and ‘easier to understand’.

There are concerns that the introduction of the online service may discourage individuals from using a probate specialist where it may be advisable to do so, for example where the estate is taxable, has foreign or complex components, or may be disputed.

The announcement comes at the same time as the Ministry of Justice’s proposal to increase the probate application fee with a banded fee structure depending on the value of the estate.

STEP strongly opposed this new system when it was proposed in 2016, on the basis that it is disproportionate to the service provided by the probate court. It is effectively a new tax on bereaved families. The government intends to introduce this measure without any proper debate via Statutory Instrument (see STEP blog: The death tax returns).

STEP will continue to follow developments in this area.

 

Emily Deane TEP is STEP Technical Counsel

The death tax returns

George HodgsonThe UK government has re-introduced proposals to fund the courts service via charging higher probate fees. The proposals emerged late yesterday, a week after the budget.

While the headline charges are less extortionate than were proposed last year, for an estate of GBP300,001 – GBP500,000 the fee will rise 249 per cent to GBP750, and for a GBP1 million estate, the fee will rise to GBP4,000, an increase of 1,760 per cent (see table below).

According to 2014/15 figures, 261,500 estates went to probate, of which only 35,000 were under GBP50,000. This indicates that 85 per cent of estates, where probate applies, will therefore see an increase in fees.

Value of Estate New Fee % Change (from £215)
Up to £5,000 £0   0%
£5,000 – £50,000 £0 -100%
£50,001 – £300,000 £250 +16%
£300,001 – £500,000 £750 +249%
£500,001 – £1m £2,500 +1,063%
£1m – £1.6m £4,000 +1,760%
£1.6m – £2m £5,000 +2,226%
Over £2m £6,000 +2,691%

The new charges bear no relation to the cost of probate, and are simply another form of taxation, sneaked in through the back door.

The government has failed to explain why it is choosing to place this burden on bereaved families, many of whom will have spent months or years paying expensive care fees for their elderly relatives. It is this group which has been singled out to shoulder the cost of the courts service via this additional tax, to be paid on top of IHT and legal expenses.

The government still plans to try and introduce this measure without any proper debate via statutory instrument. STEP has obtained a legal opinion which confirms that, given the tax nature of this measure, this is an abuse of the parliamentary process, a view shared by the House of Commons Joint Committee on Statutory Instruments (link below).

We will continue to press for a fairer and more transparent approach to probate fees reform.

 

George Hodgson is Chief Executive of STEP.