Law Society criticises proposed probate fee increases as “excessive”

The Law Society has responded to the Ministry of Justice’s consultation on increasing court fees, calling the proposed fee increases excessive.

The society criticised the MoJ for looking to fund general court costs on the back of the probate fee increases, and that while other cost saving measures have been introduced to help fund investment, no other improvements have been seen.

The removal of the discount in fees solicitors currently received was also questioned as this may lead to individuals taking on the task themselves when they would be better served with proper legal advice.

The introduction to the six page response begins: “The probate process takes place at what is usually an extremely stressful and difficult time for family members and friends of the deceased. It is important that this process is as uncomplicated as possible to avoid adding unduly an administrative and financial burden to their grief.

“The Society supports the Ministry of Justice‟s (MoJ) overall aim to make a simpler, more streamlined process for users of the probate service and understands that funds are needed to facilitate change and development. That said, the proposed increases are excessive, particularly for high value estates, and would be in addition to the amount already paid in inheritance tax (IHT).

“The courts and related services provide a vital function to society which have to be provided by the government, and need to be funded accordingly, but it is unfair and discriminatory to expect the bereaved to fund/subsidise other parts of the court and tribunal services. Court fees are a necessary source of funding, but should not be charged over and above the cost of the specific service being provided and should not be deliberately run to make an excessive profit.

“Whilst it might seem fairer to calculate probate fees based on the amount of work required to complete probate, the Society accepts that this approach is impractical and recognises that a graduated fee according to the value of the estate is another option. However, the top end of the proposed fee structure becomes excessively inflated and amounts to a significant tax imposition. There should be some tapering of the fee increases and they should rise with the value of the estate in smaller increments.

“In our view, if probate fees are to be calculated based on the value of the estate, they should be based on the value after IHT has been paid.

“The probate service should not be treated as a profit centre. The fees collected through the probate service should be allocated to cover the cost of running and improving the probate registry and not to subsidise others areas of the court system. The court system should not take advantage of often vulnerable individuals who are recently bereaved by charging excessive probate fees when individuals are obliged to apply for probate (on estates over the threshold amount).”

The full response can be read here.

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