Aligning the fees for grants of probate to cost recovery – Law Society response

The government is consulting on whether to align the fees for grants of probate into a single fee that is set at cost recovery.

The proposals

The proposed changes would set a single fee for professional and non-professional probate applicants that is set at cost recovery. This would be set at £273, regardless of the size of the estate.

The current fees are £155 for professional users and £215 for non-professional users.

The Ministry of Justice (MoJ) has said that the objectives of the proposal are to:

  • remove the discrepancy between professional and non-professional applicants for probate
  • align the fee structure with HM Treasury’s guidance on managing public money, where all users should pay the same fee for the same service
  • ensure that the fee recovers the cost of delivering the probate service
  • protect access to justice by ensuring that courts and tribunals are adequately resourced, while reducing the overall taxpayer subsidy for Her Majesty’s Courts and Tribunals Service (HMCTS)

Our view

We support the MoJ’s overall aim to make a simpler, more streamlined process for users of the probate service and we understand that funds are needed to facilitate change and development.

We agree that probate fees should be designed to cover the cost of running and improving the service, and so we welcome the departure from a policy of setting prohibitively high fees.

However, we query why government has decided to increase fees at this time.

We’ve supported the development of the online probate system and continue to work with HMCTS to improve the service it provides.

We note that savings and income for the court systems have already been produced by:

  • court closures
  • the digitisation strategy, and
  • increased fees across various court jurisdictions

Therefore, any increase in fees now should reflect new and tangible improvements made to the service. We’d welcome a commitment from government that the revenue raised from this proposed increase will be used to fund improvements to the probate service and not other court jurisdictions.

We’d recommend reviewing the fees in a few years, once:

  • online probate is the norm across applications
  • the immediate effects of the pandemic have settled

We believe that government should implement a minimum service level standard for individual applications whereby if the service drops below that standard on an individual application, then the applicant is automatically reimbursed a percentage of the fee.

We take the view that stop statistics should be published (for both professional and personal applicants). This would allow HMCTS, and solicitors, to identify trends which could help with any updated guidance HMCTS issues on stops in the future.

Next steps

The consultation closed on 23 September 2021.

We’ll continue to work closely with colleagues in HMCTS, including through regular meetings about the probate system for professional users.

Maximise your Law Society membership with My LS