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Probate fee reform continues to be delayed by Brexit (18 July 2019)

Date: 18/07/2019
Duncan Lewis, Legal News Solicitors, Probate fee reform continues to be delayed by Brexit

Personal representatives, whether they are appointed as executors or administrators, hold the responsibility of dealing with the estate of the deceased. The purpose of the grant of representation is to provide personal representatives with the authority to receive assets from the estate. Probate solicitor applications are charged at a fee of £155 whereas personal applications are charged at a fee of £215 provided that the estate is worth at least £5,000.

The proposals to reform probate fees initiated in 2016 whereby discussions took place in order to introduce a fee structure for applications based on the value of the estate; increasing the threshold below which no fee is payable for applications for grants of probate.

In February 2017, a large majority disagreed with the proposal to charge a fee based on the size of the estate, and the proposed new fee structure. Nonetheless, the Government responded by stating that the increased fees were necessary to ensure adequate funding for the court service in order to provide access to justice in the long term.

The 2018 draft order introduced a new regime of fees for applications for a grant of probate, with a banded structure based on the value of the estate. In light of this, the following would apply:

  • increase the estate threshold below which no fee for an application for a grant of probate is payable from £5,000 to £50,000;

  • introduce fees ranging from £250 for estates worth between £50,000 and £300,000, to £6,000 for estates worth more than £2 million.

In December 2018, the Government spokesperson for the Ministry of Justice in the House of Lords stated for the 2018 draft order to be approved. The 2018 draft order was considered by the 14th Delegated Legislation Committee in February 2019. Nonetheless, various disagreements on how the new regime should be imposed occurred.

The 2018 draft order is now awaiting formal approval by the House of Commons, although a date is yet to be fixed. If approved, the Lord Chancellor will proceed to make the order and it will come into force 21 days later. It had been stated that the reforms would come into force as soon as possible, however, due to the ongoing Brexit negotiations the reforms have been set aside.

Due to the uncertainty of probate fees, probate registries are now experiencing huge delays as solicitors and lawyers are trying to submit as many applications as possible before the new fee regime comes into effect. According to the Government Law report, applications rose by 22% in March 2019. Initially, probate applications from solicitors were taking up to eight weeks to process however due to the backlog they are now taking at least 11 weeks to consider.

Not only are the probate registries experiencing an immense increase of applications, they are also in the process of rolling out a new software system which has resulted in additional issues and caused further delays in obtaining grants of probate and letters of administration. It has been reported that the backlog was reduced by 20,000 between May and June 2019. Regardless, the uncertainty still exists as to when the hike in probate fees will take effect and the time scale of when probate applications will be processed.

Author Simi Gupta is a legal executive in the Wills and Probate department at Duncan Lewis Solicitors under director Caroline Roche. She offers advice and assistance on matters involving Lasting Power of Attorney and inheritance tax as well as various matters pertaining to wills and probate.

Contact Simi directly on 020 3114 1253 or at simig@duncanlewis.com.

Duncan Lewis Wills & Probate Department

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