The government's proposed changes to the structure of probate fees have been put on the back-burner following the announcement of the election date. With the plans attracting fierce criticism, are they like to resurface following polling day?
The Ministry of Justice's plans to change the legal fees payable after death generated controversy when they were first put foward, but they've now been put back on the back burner following the announcement of June’s snap election. The plans had attracted criticism even before Theresa May decided to go to the country, with some observers questioning their legal basis.
The new fee structure would have represented a significant shift from the existing probate arrangements. Probate fees are charged at a flat rate of either £155 or £215 for every estate above £5,000, depending on whether the application is made using a solicitor, but under the new plans fees would have been charged on a sliding scale, up to £20,000 for estates over £2m in value.
On the other hand, the threshold below which no probate fees would have been charged at all was to rise from £5,000 to £50,000, meaning that over half of estates would pay nothing. The change was designed to raise around £300m a year to run the courts and tribunal service, yet the plans attracted some opposition.
Some observers argued that the changes meant this was no longer a fee, but rather a tax, and so required parliamentary approval. A report from the Joint Committee on Statutory Instruments (SI) stated that: “It is an important constitutional principle that there is no taxation without the consent of parliament, which must be embodied in statute and stated in clear terms.”
The committee said that the new charges “appear to have the hallmark of taxes rather than fees”, and they were “disproportionate to the service provided by the Probate Registry”. This was backed up by public law expert Richard Drabble QC, who argued that: “the doubts expressed by the SI Committee are soundly based, and the proposed order would be outside the powers of the enabling act.”
The government intended to use the powers described in section 180 of the Anti-social Behaviour, Crime and Policing Act of 2014 to bring in the changes without parliamentary approval. Oliver Heald, QC MP, said that the act gave ministers the power to make these changes. “There is nothing unexpected about this, it's all been consulted on,” he said.
There's not enough parliamentary time to pass the changes before the election however, so the plans have been put on hold for now while the campaign gets fully under way, and it's fair to say that probate fees are unlikely to be a particularly prominent issue. It remains to be seen whether the plans will resurface when parliament gathers again following polling day, so watch this space.
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