What is going on with Probate Court fees? Anyone with any skin in the game will take a step back at this point, 1,000-yard stare fixed in the distance, and slowly shake their head. 

For anyone who has managed to avoid the news for the past 18 months (well done you!), this concerns the proposed fee hike for probate cases (see this excellent Q&A for more information).

This is not a new thing. In 2016 the government consulted on a plan to scrap the current probate court fees (£155 for solicitor applications, £210 for personal applications) in favour of a sliding scale based on the value of the estate. At most, the new fees would have seen estates worth more than £2m paying £20,000.

Astute commentators noted immediately that there is very little, if any, difference in the amount of work needed to issue a Grant of Representation in a multi-million-pound estate as compared to a multi-pound estate. As a fee should relate solely to the work done, this seemed very much more akin to a tax than a fee which could render the new fees outside of the lawful power of Parliament. Indeed, the Government themselves endorsed this view, stating that the increase was necessary to fund other services within the Courts and Tribunal System.

Both the Society of Trust and Estate Practitioners and the Law Society strongly objected to the new fees. Two separate committees of the House of Lords agreed and, ultimately, the plans were shelved. Realistically that should have been that.

Undeterred however, the Government laid new legislation before Parliament in November 2018 designed to bring in the new fee regime on 1st April 2019. There have been some minor amendments (the highest fee is now £6,000). The same voices dissented for the same reasons. Once again, the same two committees of the House of Lords have drawn special attention to the bill as raising issues of intra vires (or whether Parliament has the lawful power to introduce such fees). This time the statutory instrument has not yet received parliamentary scrutiny and the implementation has been delayed. 

Nevertheless, the official position is still that this is happening. If we were minded to gamble, we would suspect that the fee hike will be scrapped. Anyone with an eye on the Employment Tribunal fee fiasco will know what happens when fees are incorrectly inflated and are subsequently challenged.

Still we receive a lot of enquiries from people concerned with avoiding the new fees. Unscrupulous operators are now hawking (at considerable expense) discretionary lifetime settlements as a vehicle to avoid probate fees. In fairness, they will avoid the fees but often at a much greater cost! 

The take home advice, as always, is to ensure you take advice from a fully qualified professional, ideally one that is a member of the Society of Trust and Estate Practitioners.