The government should not treat the probate service as a profit centre by charging ‘excessive fees’ to vulnerable and bereaved people, the Law Society has said.
In its response to the Ministry of Justice’s proposals to charge probate fees of up to £20,000 on the highest-value estates, the Law Society also cautioned against plans to stop charging a reduced fee for solicitors applying for probate.
It said this may encourage more people to undertake probate themselves, ‘when there are many good reasons why people should take legal advice or instruct a solicitor to undertake the probate process, which presently can be quite complex’.
The Society said it may be ‘pre-emptive’ to remove the reduced fees for solicitor applications ahead of any improvements or simplification to the probate system.
While the Law Society said it agreed with charging probate fees based on the value of the estate, it described the proposed top fee as ‘excessively inflated’ and said it amounts to a significant tax imposition.
The proposed rise in fees could leave beneficiaries of the most valuable estates - worth over £2m - paying £20,000, as much as 129 times more than current levels.
The Society said: ‘It is unfair and discriminatory to expect the bereaved to fund/subsidise other parts of the court and tribunals service. Court fees are a necessary source of funding but should not be charged over and above the cost of the specific service.’
It suggested any fees should be based on the value of estates after inheritance tax has been paid.
The Society said while some solicitors firms currently assist executors by paying probate fees as a disbursement, if the fee increases were introduced, firms might have to withdraw this ‘goodwill gesture’.
Higher fees could also encourage some people to reduce the value of their estate to lessen their probate fee or avoid it altogether, such as by adding a second name on a property or bank account, or holding assets offshore.
It noted that HM Courts & Tribunals Service should already be raising significant funds through court fee increases imposed in the past 12 months and the sale of court buildings.
The Law Society added: ‘Court closures and court fee increases in recent years have produced income and savings, but we have yet to see any tangible improvement to the court systems.
'Fees obtained by the probate service should be designed to cover the cost of running and improving the probate service and should not be siphoned off to fund other areas of the court system.’