Soaring fees set deadline for executors and estate planning

Controversial court fees which have been branded a stealth tax on bereaved families are expected to prompt a surge in probate applications before the hike hits.  The new banded fee structure will see the cost of probate soar by thousands of pounds for higher value estates.  

The current flat fee is £215 for a personal application for probate, or £155 when handled through a solicitor, but this is to be replaced by a tiered set of fees. No fee is currently payable if the estate is worth less than £50,000. While the fees have been reined in from the original proposal last year, which would have seen charges of up to £20,000, the biggest estates will still find themselves paying £6,000 in court fees.

The fees are payable to the court when the executors apply for formal authority to act in the administration of the estate, once they have identified and itemised all the assets owned by the person who has died.  This follows submission of the inheritance tax return for the estate and payment of any inheritance tax that is due.

And until the application for a Grant of Probate or Letters of administration has been approved by the court, the executors are unable to bring in the assets of the estate.  Banks will not release the funds held in bank accounts, the proceeds of shareholdings cannot be handed over and no houses or commercial property can be sold until probate has been obtained.

As no funds can be distributed until the Grant has been issued, except for payment of funeral costs and inheritance tax, there are concerns that families will struggle to pay the probate fees before they can access the money locked in the deceased’s estate.

And those estates that comprise high value property, but are short on liquid assets, may find themselves paying high court fees without any expectation of cash to offset the cost.  This could be the case where a husband or wife has died and the survivor needs a grant of probate to transfer the property into their sole name.

Lucy Frazer MP, the Parliamentary Under-Secretary for the Ministry of Justice has said:

“This new banded fee model represents a fair and more progressive way to pay for probate services compared to the current flat fee and reflects our commitment to protecting access to justice by ensuring we have a properly funded and resourced courts system. We are also confident these fees will never be unaffordable. The cost of the fee is recoverable from the estate and executors have several options to fund it. Moreover, the Lord Chancellor retains a power to remit a fee if he considers there are exceptional circumstances.”

For executors who are already in the process of administering estates, especially larger ones where the increased fees will be more of a hit, it’s worth reviewing the position to see if they can get the estate ready to apply for probate sooner rather than later.  It’s currently expected to be April when the switch is made to the tiered fee structure, but it could be earlier and there will be just 21 days from the announcement until the new fees kick in.

Looking to the future, if you expect your estate is going to be affected then it’s worth getting some advice.  There are only limited ways in which to tackle the amount of fee that will be due, but there are other ways in which you can ease the burden for your executors.

Ways in which forward planning may help, include taking out a life insurance policy and putting it in trust.  If made over in this way for the benefit of a family member, or other beneficiary, the pay-out will not be included within the estate and can be accessed on death without the Grant of Probate.

Leaving property to a surviving spouse by means of a trust rather than an absolute gift will reduce the value of the surviving spouse’s estate for the purposes of the court fee calculation when he or she dies.

The important thing when estate planning is to make sure you understand all the implications and check that what you’re planning will solve the problem and not create a new one, which is why you do need to get specialist advice if you’re getting into more technical areas.

For example, the taxman is taking an increasingly forensic approach to checking out transfers of property made before death.  Growing numbers are handing over property to family but continuing to live there, which is known as a ‘gift with reservation of benefit’ and gives rise to all sorts of complications and potential tax liabilities.

It’s good practice to regularly review your estate and tax planning, as things are always changing, so this is a good time to do that temperature test.

 

New probate court fees from April 2019:

Estates with a value of less than £50,000 will be exempt.  Above that, the fees will be on a sliding scale from £250 to £6,000.

Estate value                           

Up to £50,000 or exempt (fee: nil)

£50,000 – £300,000 (fee: £250 – a rise of £35)

£300,001 – £500,000 (fee: £750 – a rise of £535)

£500,001 – £1m (fee: £2,500 – a rise of £2,285)

£1,000,001 – £1.6m (fee: £4,000 – a rise of £3,785)

£1,600,001 – £2m (fee: £5,000 – a rise of £4,785)

Over £2m (fee: £6,000 – a rise of £5,785)

 

This is not legal advice; it is intended to provide information of general interest about current legal issues. 

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Louise Harrhy

Partner, Head of Trusts & Estates

A Partner based in Cranleigh, Louise is also Head of the Trusts & Estates team at Hart Brown and has extensive experience in a broad...

Partner, Head of Trusts & Estates

Louise Harrhy

A Partner based in Cranleigh, Louise is also Head of the Trusts & Estates team at Hart Brown and has extensive experience in a broad range of Private Client work.

Louise helps clients with all aspects of Private Client work and deals with the formation and administration of trusts, lifetime and post death planning and will drafting. She also works with other professional advisors to provide a complete package of advice.

Louise has considerable experience of applications for probate and estate administration often including complex issues and overseas assets. Additionally, she can help clients with Court of Protection matters including lasting powers of attorney and court applications for gifts.

"Louise Harrhy is highly experienced in probate applications and estate administration especially matters involving offshore assets. She is skilled in Court of Protection matters, including deputyships and lasting powers of attorney." (Chambers UK 2016)

"Louise Harrhy is a really driven and committed lawyer. She advises clients on a wide range of areas, including the creation of wills, the establishment of trusts and the administration of estates. Her work also incudes Court of Protection matters." (Chambers UK 2017)

Louise is also a member of The Society of Trust and Estate Practitioners.