It is with some relief in the legal profession that the uncertainty over the increase in probate court fees was ended last autumn following the announcement from the Ministry of Justice that the fees would not be increased.
The proposed increase in fees was due to start in April but was delayed due to lack of Parliamentary time to pass the statutory instrument needed to implement the increase.
The prospect of a significant rise in the cost of obtaining probate was inevitably going to cause additional stress to families already going through a difficult time following the loss of a loved one.
However, the proposal affected more than just the bereaved families.
Solicitors were concerned that they would be open to criticism if they did not submit the probate applications before the fees increasedThe uncertainty caused solicitors extra pressure, because naturally all the executors they were acting for wanted their probate applications submitted before the fees increased.
Solicitors were concerned that they would be open to criticism, and possibly claims, if they did not submit the probate applications before the fees increased.
The probate registries were affected too as they were flooded with probate applications during a time when they were implementing a new computer system and restructuring and centralising their offices.
As a result, the processing time for a grant of probate went from 2 weeks to up to 12 weeks.
This affected those executors who had agreed to sell a property owned by the deceased person, as an executor cannot exchange contracts to sell a property until the grant of probate has been issued.
In many of my cases the administration of the estate just ground to a halt for up to 12 weeks whilst we waited for the grant.
This was extremely frustrating for the families I was assisting.
Currently the fixed fee is £215 for a personal application or £155 through a solicitor.
The increased fees would have been based on the value of the estate with £6,000 being charged for an estate over £2m.
An estate of between £500,001 – £1m would have been subject to a fee of £2,500.
The executor of an estate would have had to raise these funds before probate could be granted which would have been an issue for those cases where the assets of the estate comprise a property and there are limited liquid assets.
The Law Society campaigned against the fee increase and has welcomed the announcement.
The President of the Law Society Simon Davis said: ‘A hike in probate fees would have been a tax on grief.
We campaigned vigorously against the increase on behalf of bereaved families and are relieved the government has listened to reason.
It is inherently unfair to expect the bereaved to fund other parts of the courts and tribunal service when they have no other option but to apply for probate.
In its review of court fees government should bear in mind that it is a false economy to impose charges that go beyond cost recovery. Equal access to justice is a fundamental part of the rule of law.
The Ministry of Justice has said that the fees will be looked at again as part of a general review of all court fees.
There is a possibility that this proposal might be resurrected but the Law Society has said that they would challenge it again if necessary.
Sue Macleod is associate in trusts and estates team at Hart Brown Solicitors
