Birmingham barrister criticises the Government’s move to introduce an extra ‘death tax’

Mon, 19 Nov 2018

A Birmingham barrister has raised concerns over the Government’s move to increase probate fees claiming it is an additional ‘death tax’.

Under the new rules, estates worth £2m or more will pay £6,000 in probate fees, which is a 3,770 per cent increase on the current £155 fee. This is a reduction on the original plans, which would have seen a bill of £20,000 for the biggest estates.

Large estates will have to pay the most, while estates worth less than £50,000 will pay nothing. A “grant of probate” allows the executor to access and distribute someone's estate when they die.

Nicola Preston, of No Barristers’ Chambers, said: “This is no less than an additional death tax, which will have to be paid in addition to any inheritance tax that may be due on the estate. 

“The Government line is that the charges are necessary in order to fund the court system.  This ignores the fact that the work required of the Probate Registry is the same, whether the estate is worth £10,000 or £2m or anything in between.”

The changes are likely to be introduced in April 2019, but the rules already form part of the law. The Government made use of a parliamentary procedure called a ‘negative statutory instrument’, which means it is able to write the changes into law without debate.  The changes to legislation take effect on the day they are announced.  It is only when there is a motion to reject announced within 40 days that there might be any debate or amendment.

Nicola added: “This is not the first time that a ‘no debate’ procedure has been used. It was employed when the costs of issuing money claims were increased overnight. There is one important difference, however, in that a litigant has a choice as to whether to sue or bring a claim or not.  There is no option when an estate needs a grant of probate so that the estate can be administered.  It is no wonder this has been dubbed a ‘stealth wealth tax’.”

The Ministry of Justice has insisted that the new probate fee structure, which was laid before Parliament on November 5 2018, is not a tax. 

Nicola Preston is a member of the Estates, Trust and Tax Group at No5 Barristers’ Chambers. To read her profile, visit https://www.no5.com/barristers/barrister-details/222-nicola-preston/

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