New probate fees: a guide for the public

flowers

UPDATE 21/04/2017: the Ministry of Justice has abandoned the new fee regime due to lack of parliamentary time prior to the 2017 General Election. See more information.

What is probate?
When someone dies, you need to get the legal right to deal with their property, money and possessions, and to do so you need a grant of representation, which is known as ‘probate’.

When is probate not needed?
Usually you won’t need to apply for probate if the estate does not include land, property or shares; if it is passing to a surviving spouse or civil partner because it was held in joint names (e.g. a joint bank account, or a home owned as ‘joint tenants’); or if the estate is valued at less than £15,000.

Each financial institution has its own rules, however, and may still require you to apply for a grant even if the value is under this threshold.

What is happening to probate fees?
In February 2017, the government announced that probate fees in England and Wales will change in May 2017 to a banded system, where fees increase with the value of the estate, replacing the current flat fees of £155 if you apply through a solicitor, or £215 for a personal application.

The proposal to link probate fees to the value of the estate was published in February 2016 and attracted overwhelming opposition. Nonetheless, the new system has been brought in, and was confirmed in the March 2017 Budget.

The fee structure as of May will therefore be as follows:

Value of Estate New Fee % Change (from £215)
Up to £5,000 £0   0%
£5,000 – £50,000 £0 -100%
£50,001 – £300,000  £300  +40%
£300,001 – £500,000  £1,000 +365%
£500,001 – £1m £4,000 +1,760%
£1m – £1.6m £8,000 +3,621%
£1.6m – £2m £12,000 +5,481%
Over £2m £20,000 +9,202%

When in May does the change kick in?
The government has not yet confirmed the exact date in May from which these changes will apply. The new fees will apply to all applications received by the probate service on or after this still-to-be-announced date in May, irrespective of the date of death. Probate registries have said that any application received within working hours of the Probate Registry before the implementation date will be charged the current fee.

What can you do?
Applying for probate takes time as you need to gather a number of documents and all the relevant information regarding the value of the estate to ensure any inheritance tax obligations are correctly accounted for. If you are very recently bereaved it may therefore be very difficult to submit a full application for probate before the new fees are implemented.

If, however, you have already started the process, you may want to try and get your probate application in before May to ensure you pay the current flat fee.

If you are applying for probate through a solicitor, your solicitor will be aware of the situation and will be doing everything they can to try to get your probate application lodged with the probate registry before the new fee structure applies.

If you are making a personal application, you should be aware of a few important points:

  • In cases where you are required to submit an IHT400 or any document for assessment by HMRC for inheritance tax purposes, many probate registries have said that it is possible for you to submit the appropriate forms to both HMRC and HMCTS Probate simultaneously. They will not issue your grant until the approved IHT421 is received, but the probate registry will mark your application as lodged. To assist them in not raising this as a query, they have advised that you clearly mark on your application that the inheritance tax document will follow after assessment.
  • A ‘full application’ for probate purposes, and therefore to qualify for the appropriate fee, must include:
    • Full oath sworn by all deponents and commissioners
    • An original will and codicil (where appropriate) endorsed by all commissioners and deponents
    • The appropriate number of correct copy wills and codicils
    • An Inland Revenue account (with the exception of IHT400s/421s where assessment is ongoing and it has been noted on the covering letter that it will follow)
    • All associated documents including any affidavit evidence required at the time of submission, renunciations, powers of attorney
    • The appropriate fee.

    Upon receipt of an application in this form prior to commencement then the existing fee will be charged.

  • If the estate you are dealing with is asset rich but cash poor, the probate registries have said that executors will be able to apply to the Probate Service to access a particular asset for the sole purpose of paying the fee. Instalment options will not be available.

Where can you get more information?
The government has not published any public information on this issue beyond the consultation documents:

In the absence of public-facing information from the government, we will continue to publish updates on this, as and when they are announced, here on the STEP Blog.

If you have any specific questions about your probate application please contact your local probate registry.

George Hodgson is Chief Executive of STEP

Legacy giving: the role of the practitioner

charity jarOn 18 October, my colleague Beatriz Brockhurst (STEP News Editor) and I attended the launch of Legacy Giving and Behavioural Insights – a research report which examined how will writers discussed charitable giving with their clients.

Bridging the gap

The research illustrates the gap between clients expressing an interest in leaving charitable gifts (35 per cent) and those who actually do so (6 per cent). The event considered the ways in which practitioners can encourage greater giving by testators, drawing on evidence gathered from eight law firms and 31 solicitors, as well as 2,600 wills that were analysed during the two-year study.

Having the conversation

As a starting point, professionals should be talking about charitable legacy with their clients as part of the will preparation process.

But are clients comfortable with having this conversation? The study found that 69 per cent of clients generally deemed it acceptable for such a topic to be raised – and 46 per cent regarded it as the duty of the professional to mention it.

Different approaches

The research trialled three different ways of talking to clients about charitable legacies:

  1. Social norm framing – informing the client that charitable bequests was something many people did, and to ask if they would like to do the same. Legacy giving increased by 40 per cent for people making their first will.
  2. Emotional framing – asking the client to think about charities they or their families were passionate about, and/or had benefited from. This type of messaging was found to increase donations from clients both with and without children.
  3. Posthumous benefit framing – highlighting the good work that would result from a charitable bequest. This was regarded as the least acceptable and least effective form of messaging.

Tax incentives

The study also found that, in most cases, the tax advantage of legacy giving due to inheritance tax thresholds was not a motivating factor.

A TEP’s perspective

Jo Summers TEP, a member of STEP’s UK Practice Committee, offered a practitioner’s point of view. She emphasised the need to broach the subject of charitable legacy carefully and sensitively, not least to protect against being regarded as having exercised undue influence. Jo cited the initial client questionnaire as a good way to introduce the topic, with scope for a further conversation, if the client indicated this would be appropriate.

Practitioners also need to be aware that the charity the client would like to leave a donation to could change over time. As a practical solution, Jo suggested the will could contain a clause stating a percentage legacy, or a fixed sum to be split between charities chosen by the executors, with a letter of wishes to indicate where the money should be donated, depending on the client’s family circumstances at the time of their death.

Conclusion

The study concludes that will clients are generally open to having a conversation about charitable legacy. Practitioners can therefore play an important role in raising the level of charitable donations as legacy gifts.

The report offers interesting behavioural insights around legacy giving – I encourage you to read it:

 

Sean Smith, STEP Policy Manager

What’s happening to dormant assets?

Post Office Savings Book

The UK government has recently formed the Independent Commission on Dormant Assets which is investigating a revised scheme in order to identify new pools of dormant or unclaimed assets.

The existing scheme was formed in 2008, after the Dormant Bank and Building Society Accounts Act 2008 was passed, which deems bank and building society accounts to be dormant after a lack of customer-initiated contact for 15 years. The intention of HMRC is to locate these abandoned assets and use them to benefit good causes.

The commission is pooling its resources from various finance and industry experts and intends to report its final analysis to the prime minster and the cabinet office by the end of 2016. It will analyse the following:

  1. Which dormant assets can be brought into an expanded dormant asset scheme, and how they can be identified by industry
  2. The projected size of the funding pot this could produce for good causes
  3. Whether with the potential increase of dormant assets being released by industry the current system is able to manage the burden; and
  4. Whether any new legislation should include a requirement for improved transparency from industry on disclosing the level of assets within their sector.

The government estimates indicate there could be more than GBP1 billion of untapped sources of dormant assets which may include stocks, shares, bonds and pensions. Since the Dormant Assets Scheme was initiated in 2008, approximately GBP750 million has been released from banks and building societies and most of the recipients have been charities across the UK.

The new scheme is intended to provide further momentum to pass the dormant funds onto those who really need them in the charity sector. Rob Wilson, the Minister for Civil Society states, ‘More than a billion pounds of assets, that might otherwise sit gathering dust, will go into funding for charities that make a real difference to people’s lives across the country. To build an even more caring and compassionate country we need to transform dormant resources and give the funds to those who need it.’

It is easy to understand how these assets are overlooked in the first instance, considering how common it is for people to manage their assets digitally (see below). Family members may be completely unaware of the existence of bank accounts or stocks or shares, let alone having access to the data and passwords.

Other possible scenarios might be moving home and not redirecting the post, changing names after marriage, mergers between banks and building societies or a general lack of paperwork. These accounts may be unintentionally abandoned for 15 years and later released to an obliging local charity, to the detriment of the unknowing beneficiaries.

However, there are common scenarios which do not give rise to dormant assets such as intestate estates. The rules of intestacy are activated when someone dies without making a will and they determine which surviving relatives will inherit the estate. In the event that there are no surviving relatives, after investigation, then the estate automatically passes to the Crown and will not be subject to the dormant asset rules.

In the event of a testate estate, and a missing beneficiary, the process becomes more arduous due to the fact that personal representatives and trustees (in the case of trusts) have clear fiduciary responsibilities to carry out the deceased’s wishes for their estate or trust. They are under a duty to protect the interest of the beneficiaries. Therefore, if adequate measures have been taken to locate a beneficiary unsuccessfully, it is deemed reasonable to assume they have died, and distribute the funds to other beneficiaries in accordance with the will.

The personal representative or trustee may seek an indemnity from the other beneficiaries to cover the funds, should the missing beneficiaries reappear. Alternatively they may seek a similar indemnity from an insurance company. Where significant funds are involved they may instead seek a ‘Benjamin Order’ from the court, allowing the trustees to assume that the missing beneficiary is dead. In any event, the funds will be distributed, rather than being held awaiting any contact from the missing person. Therefore, the assets will not linger, or be overlooked, and the estate can be promptly wound up, unless they have passed completely under the radar in the first instance.

  • STEP has recently set up a Digital Assets Working Group to address the emerging issues for practitioners in this field. Its purpose is to educate members and providing guidance and resources; and to campaign for greater clarity and uniformity in international laws and the T&Cs of internet service providers.

 

Emily Deane TEP is Technical Counsel at STEP

Controversial will? Advise your clients on ‘statements of reason’

contact on wall
Earlier this spring STEP hosted the Tax, Trusts & Estates Conference at a number of venues around the UK. Speakers included Stephen Lawson TEP, Chris Whitehouse TEP, Caroline Bielanska TEP, Steven Kempster TEP, Professor Lesley King TEP, and Lucy Obrey TEP.

Stephen Lawson provided a much needed update on the Inheritance (Provision for Family and Dependants) Act 1975, which has already been amended several times.

Under this Act, a will can be contested if the deceased failed to provide reasonable financial provision for someone who is eligible to bring a claim. If successful, the other beneficiaries will receive less than they were originally bequeathed.

Stephen drew our attention to that fact that these claims could sometimes be avoided with a well-written will and an ancillary ‘statement of reasons’ to support its content. This is particularly prudent where the testator is excluding estranged family members from the will. A statement of reasons that has been carefully drafted by the practitioner, and signed by the testator, will have gravitas and will be considered by a judge when deciding whether to award provision.

Inheritance Act litigation is becoming increasingly common due to people’s demanding financial needs, and claimants will often pursue their claim with a ‘no win no fee’ agreement, so they are not financially encumbered. Regrettably, this type of litigation can potentially delay the administration of an estate by up to three years, which seems unfair to the bone fide beneficiaries.

It is therefore essential that practitioners flag the importance of the Act’s ramifications to testators, and discuss who might be entitled to a claim, so that an informed discussion and statement can be prepared to prevent any unwanted litigation.

Stephen provided a summary of some pertinent cases, such as Ilott v Mitson (2015) EWCA Civ 797. In Ilott the statement of reasons was not determinative. With the benefit of hindsight it could be seen that the statement of reasons that had been prepared was based on negative reasons as to why the claimant should be excluded – it did not emphasise positive reasons as to why the other beneficiaries should have received her bounty – as an illustration, if the testatrix had been a lifelong supporter of animal charities this reason could have carried more weight.

In this case, the court could not establish who was at fault for the estrangement. Stephen stressed the importance of providing a concise and objective statement when a potential claimant is being excluded from the will, in case it is challenged later.

Although a well drafted statement cannot be determinative, a court will take it into account when deciding whether a potential claimant has a valid claim.

Emily Deane TEP is Technical Counsel at STEP