Fresh concern has been raised about the proposed overhaul of probate fees after the Office of Budget Responsibility said it expects the new fee structure to be classified as a ‘tax’ despite the fact ministers have previously rejected that assertion.

According to the Office for Budget Responsibility: Economic and fiscal outlook’ published this month the Treasury is expecting the Office for National Statistics (ONS) to ‘classify the new structure … as a tax in the National Accounts.’ The document adds: ‘The new probate fee structure is expected to generate £155 million a year in additional tax receipts.’

A spokesperson for the Ministry of Justice (MoJ) today reiterated its stance that the new fee structure is not a tax. ‘Any decision by the ONS to define it as such would be purely for accounting purposes. The income raised from probate fees will go towards funding a more efficient and effective courts and tribunals system,’ they told the Gazette.

But Ian Bond, head of trusts and estates at West Midlands firm TalbotsLaw, said the description was significant. ‘Tax has to be introduced via primary legislation, subject to proper parliamentary scrutiny and not via a statutory instrument (SI). We echo the finding of the Lords Committee that this is a “stealth tax” and a misuse of the lord chancellor’s fee-levying powers.’

Bond said it is unlikely that the Treasury will agree to the order being laid if there is a chance that it can be challenged as a stealth tax. ‘The risk of this being overturned by judicial review we hope will be too great for HMT to allow MoJ to press on,’ he said.

Usually, unless there is a formal objection, legislation introduced via statutory instrument would pass unchallenged. However, the Labour Party has said it plans to formally object to the SI when it is laid before parliament. This is due to happen before 1 April.

Under the plans, probate charges will be linked to the size of the estate with the wealthiest estates (those valued at more than £2m) facing a £6,000 charge. It would replace the current flat fee of £215, or £155 for those applying through a solicitor. Estates valued at under £50,000 will be exempt from charges. Currently the exemption applies to estates under £5,000.