Last year, Clayton and Brewill discussed the government’s plan to make significant changes to the probate fees structure, and the Non-Contentious Probate Fees Order has been scheduled to be voted on by the House of Commons since February 2019. This month, following the prorogation of Parliament, this planned vote lapsed – a change welcomed by those opposed to the new structure.
But, since the Supreme Court’s recent ruling that the prorogation of parliament was illegal, the Order has been revived and is now back on the government’s radar.
The proposed new structure would have seen a considerable increase in probate fees for those with high value estates. Fees would have risen from the current fixed fee of £215 – or £155 with a solicitor – to a sliding scale of fees going up to £6,000 for larger estates.
For estates worth less than £50,000, there would be no fee for an application for a grant of probate. But for those over £50,000, the proposed new fee structure is as follows:
While these rates are far lower than what was originally proposed (£20,000 for estates over £2 million), the Order has nonetheless been dubbed as “a tax on grief.” The Law Society has spoken out repeatedly against the Order’s introduction with its #ATaxNotAFee campaign, stating the change would likely cause “significant cash flow issues for the bereaved.”
The proposed new probate fees structure had been scheduled to be discussed in Parliament for February 2019, with the expectation that it would then be implemented by April 2019. But with Brexit continuing to take centre stage in the parliamentary timetable, the new legislation has been repeatedly postponed over the last six months.
Following Boris Johnson’s decision to prorogue Parliament, the motion fell away altogether. Prorogation is the formal name given to the period between the end of a session of Parliament and the State Opening of Parliament that begins the next session. It brings to an end nearly all parliamentary business, and all motions lapse. Opposers of the Non-Contentious Probate Fees Order were optimistic that the prorogation would mean the new structure would be delayed significantly.
However, last week the Supreme Court ruled unanimously that the prorogation was unlawful, and therefore null and of no effect. Consequently, parliamentary activities have resumed as normal and all motions that lapsed have now been revived. The first item on Parliament’s list of Future Business for Remaining Orders and Notices is “that the draft Non-Contentious Probate (Fees) Order 2018, which was laid before this House on 5 November 2018, be approved”. Though this may seem like defeat for those opposing the Order, with the Brexit debate raging on there can be no guarantee that the order will be discussed, or approved, any time soon.