Probate fees: proposed rise 'unjustifiable' says Law Society

The Law Society of England and Wales and members of the profession have reacted with dismay to the government's proposal to increase fees for probate applications.

Current fees are set at £155 for professional users and £215 for non-professional users. In a consultation published on 8 July, the Ministry of Justice (MoJ) proposed to “align” fees for all probate applicants with a single fee of £273.

The consultation said the increase would not generate a profit for the government, but reflects the cost of Her Majesty’s Courts and Tribunals Service (HMCTS) providing the service.

The consultation claims the objectives of its proposal are:

·       to remove the unjustified discrepancy between professional and non-professional applicants for probate and bring the fee structure into alignment with HM Treasury’s Managing Public Money, where all users pay the same fee for the same service;

·       to ensure the fee recovers the cost to HMCTS of delivering the service; and

·       to protect access to justice by ensuring courts and tribunals are adequately resourced, while reducing the overall taxpayer subsidy for HMCTS.

The Law Society said the plans to hike fees are unwelcome, given the service is still subject to significant delays. Law Society president, I. Stephanie Boyce, commented: “The MoJ’s persistence of raising fees in the probate service is worrying, particularly when there are continued and significant delays to the probate service”.

Boyce questioned how the hike in fees can be justified: “With so many applications now online and the expansion of Court and Tribunal Service Centres to centralise administration, it is unclear why probate service overheads have increased to justify such a significant fee hike”.

Boyce also said it was “no secret” those applying for probate or letters of administration had faced delays. She commented: “In 2020, people had to wait 12 to 14 weeks on average to receive their grant. This is unacceptable, the service must be timely and allow executors to settle a loved one’s estate”. 

She added: “Any increase in fees must be reflected in the service provided. The online service was specifically designed to streamline the process and the UK government must get the system working efficiently before upping costs to both professional and non-professional users alike.”

Partner and head of private capital at DWF's Manchester office, Christopher Noel, said: “I agree with the Law Society that it seems hard to justify an increase in probate fees, particularly in the context of long delays and inconsistent service levels over these long last few months”.

However, Noel said he had some sympathy with the Probate Registry who had been forced to work from home “during a difficult and unprecedented time” and said he was sure that had caused “some logistical and practical difficulties in issuing grants”.

He added: “However, there is also a push to move more and more applications online and to centralise administration of grants, and with that in mind it again seems strange to raise fees when costs are (or should be) being cut”.

Noel also commented on the distinction between the fees paid by current users: “The current fees are lower for professional users, and presumably this has always been on the basis that a professional user will be easier, less time-consuming and therefore cheaper to deal with than a non-professional user, because the professional user is familiar with the process.  

“The consultation document suggests that the costs of processing applications from the two groups is now broadly equivalent, and on that basis perhaps the two fees should be simplified into one, particularly as ultimately the estate pays in any event.”

The Law Society will respond to the consultation in full following discussions with members. The deadline for response to the consultation is 11:59pm on 23 September 2021.