The new probate fees statutory instrument has languished in a parliamentary waiting room for over two months with a myriad of errors.
The Government were ready to launch the probate fees in their current draft and had planned to make the changes from April 1 this year.
However, Law Society officials, have warned that the draft, in its current iteration, has a number of technical issues that could be exploited so that estates do not pay any fees when making an application for probate.
Furthermore, following conversations with the Law Society, the Ministry of Justice’s Head of Communications was insistent that the MoJ is committed to the Order but could not confirm a date. However, they did confirm that the Order would not be introducing a fee remission for estates going to charity.
If the error filled Order is laid, it cannot be amended, regardless of how minor the mistake. Immediate loopholes to the Order will present a huge headache to the government that has already been faced with overwhelming opposition to the perceived ‘death tax’ masquerading as a ‘fee’.
Currently, as of Wednesday May 8th, there are 37 remaining orders and notices on Parliament’s Future Business calendar; the second order on the exhaustive list, that still has 16 outstanding Brexit issues to plough through, involves the Non-Contentious Probate Fees Order 2018.
Additionally, a provisional date for the hearing of the Non-Contentious Probate Fees Order 2018 has been set for May 14. Whilst this date is likely to change as the government prioritise Brexit concerns, if it passes, the Order will be enforceable within 21 days of this date. It will also mean that the Order will be vulnerable to exploitable loopholes that could undermine the system entirely.
The Order has to go through in this parliamentary session, before the summer break, to avoid it lapsing. This means that the Order will need to pass through parliament by the end of June or the government will be forced to create a new Order when the government return to parliament towards the end of the summer.
As the Order gathers dust on the parliamentary shelf, it seems more and more likely that the government are ready to watch this version, warts and all, lapse. Rushing through a flawed Order alongside the swathe of negative publicity the vote will create is unlikely to garner support.
Fresh from their summer holiday, the government could bring forward new, error free proposals; a new order will follow, and it is speculated that a final version of the contentious Non-Contentious Probate Fees Order 2018 will finally become enforceable in the autumn.
Meanwhile, as the hiatus and uncertainty continue, it has been alleged that unregulated firms are capitalising on the Order to help market their Trust products that would bypass the need to pay a probate fee as the estate would pass organically to the beneficiaries in the trust. Many have argued that making a trust to avoid probate fees should not be the sole aim and could cost consumers thousands in legal services to set up the trust they do not really need.
Whilst the government may have pressing concerns, the uncertainty has led to increased numbers of rushed probate applications aiming to avoid the increased fees causing further delays and charities dealing with excess anxiety over the potential loss of legacy gifts.
Whenever the Order is finally introduced, it is safe to say that it will remain an albatross around the government’s frail list of achievements.
Do you think changes to probate fees will be made before parliament’s summer recess?
2 Responses
What exactly are the errors that could be exploited?
I support Julian Cohen , what are the deficiencies in the proposed order?