Update 13 Nov: Please see the Statutory Instrument timeframe below.

Original blog: The UK government has re-introduced proposals to fund the courts service via charging higher probate fees. The proposals emerged late yesterday (5 Nov 18), 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.

• Joint Committee on Statutory Instruments: Non-Contentious Probate Fees Order 2017.

George Hodgson is Chief Executive of STEP.

Update re Statutory Instrument timeframe

For members wishing to know the next stages of the statutory instrument the process in the House of Lords is as follows:

The instrument is laid before Parliament and is subsequently considered by the Joint Committee on Statutory Instruments and the House of Lords Secondary Legislation Scrutiny Committee:

• The Joint Committee on Statutory Instruments usually considers an instrument after two sitting weeks have elapsed. This process involves looking at the legal content of statutory instruments, for example whether the drafting follows the correct process and if the relevant powers have been interpreted correctly. The Committee meets on Wednesdays.
• The Secondary Legislation Scrutiny Committee usually considers instruments within 12-16 days of them being laid in Parliament. The Committee examines the policy in each instrument. It draws the House of Lord’s attention to interesting, flawed or inadequately explained measures. The Committee meets on Tuesdays and publishes its reports on Thursdays.

Once both committees have considered the instrument and given their advice a debate can take place in the House of Lords.  Peers can either approve the instrument, decline to approve it (which would stop the measure) or regret a part of it (which doesn’t stop it, but may influence how it is implemented). The timing of this debate will depend on the other items in front of the House of Lords.

This process can be accelerated under certain circumstances but there is also a large amount of Brexit-related secondary legislation both awaiting consideration by the Joint Committee as well as quite a few other instruments listed as awaiting an Affirmative Resolution.

The process in the House of Commons is as follows:

At the same time as the above process for the Joint Committee on Statutory Instruments an instrument is referred to a Delegated Legislation Committee:

• Delegated Legislation Committee: Made up of between 16 and 18 members it is tasked with ensuring an instrument is legal and within scope of its enabling powers. MPs not serving on the Committee can attend to speak on the issue, but only those on the Committee can vote.

After the Committee has met, the instrument is debated in the House of Commons.

If approved by both Houses of Parliament it is signed into law by the relevant Minister.

It is estimated that the average time for the process to be completed in the House of Commons is 6 to 7 weeks.