‘Real doubt’ whether Lord Chancellor’s probate fee increase is lawful

6 April 2017

The government’s announcement earlier this year that probate fees were set to increase by an incredible 12,900% from 1 May 2017 has been severely criticised by a parliamentary joint committee.

Probate fees are payable by executors when they apply for a grant of probate. A grant of probate is a document from which an executor derives their authority to administer a deceased person’s estate. Currently a flat fee of £155 is payable upon a probate application being made by a solicitor. Under the government’s controversial plans, a fee of £20,000 would be payable on an estate worth over £2 million. This fee is to be paid by an executor before the process of distributing an estate can begin.

The proposed new fees are: 

Value of estate  Proposed fee
Up to £50,000  £0
£50,000 to £300,000  £300
£300,000 to £500,000  £1,000
£500,000 to £1m  £4,000
£1m to £1.6m  £8,000
£1.6m to £2m  £12,000
Over £2m  £20,000

The increase has now been brought into question by the publication of a critical report by the parliamentary joint committee on statutory instruments (JCSI). A little known but influential select committee, the JCSI is a cross-party committee of MPs and Lords which is empowered to scrutinise statutory instruments. It does not comment on the merits of a proposed statutory instrument. Rather, it is responsible for ensuring that a Minister’s powers are being carried out in accordance with the provisions of its enabling Act.

The committee has questioned whether the Lord Chancellor, Liz Truss, is acting beyond her powers because she would, in substance, be imposing an additional tax on estates rather than prescribing probate fees. It is an important constitutional principle that there is no taxation without the consent of Parliament. The Lord Chancellor is not permitted to impose such a tax.

The committee agreed that the special attention of both Houses should be drawn to whether the Lord Chancellor’s plans were intra vires (lawful). The Lord Chancellor may be forced to reconsider.  We hope so!

Further information

For more information about this issue, please contact Rosa Malley or any member of our private client team.

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