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A busy time for Statutory Instruments and quick changes

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By Victoria Adams

It used to be considered that Private Client work continued steadily with changes to the law and procedure being comparatively rare, and changes happening on a more piecemeal and protracted basis over time. This can no longer be said, particularly if November is anything to go by; suddenly we have changes upon us with very little notice. Firstly, the amendments to the Non-Contentious Probate Rules and secondly the re-introduction of the increase in probate fees, both by way of Statutory Instruments.

Statutory Instrument 1137/18 to the Non Contentious Probate Rules 1987 came into force on 27 November 2018 with very little warning, and as a bit of a surprise, not least to the district probate registries who have been inundated with requests for guidance and precedents.

From this date, there is no longer a requirement to submit an oath with an application for a Grant of Representation, instead it is necessary to submit a statement of truth signed by the applicant.  Further, it is no longer necessary for the applicant to sign the original Will, bringing to an end a very historic and established process. The Statutory Instrument also enables online applications to be made by personal applicants, extends time limits in the caveat process, allows caveat applications and standing searches to be made electronically, extends the powers of district probate registrars, and make further provision for the issue of directions in relation to hearings.

Although a fairly big change in procedure for Private Client practitioners, it is unlikely that our clients will be particularly affected.  What will be felt though is the increase in Probate Fees that it seems that the government is determined to press ahead with.  After the furore in 2017 when the subject was first raised, it is somewhat surprising that the re-introduction has again been made by way of Statutory Instrument.  The justification for the increase is to fund an effective and modern courts and tribunal service to ensure and protect access to justice.  The modernisation, we are informed, will include enabling online applications for Grants of Representation, provision for access to digital support for those that need it and increasing the ability for applications to be made personally rather than through a solicitor (and therefore saving the applicant costs).  The reality is that the bereaved client is going to face a significant increase in fees, which will be calculated by reference to the value of the estate. For higher value estates the cost could be argued to be disproportionate, as of course the Probate Registry carries out the same work for each estate regardless of its value.

The flat fee to date for personal applications is £215 and for solicitor applications £155, with an additional 50p per each sealed copy requested. The system proposed from April 2019 of a banded system dependent on the value of the estate (while slightly lower than those proposed in 2017) results in an increase of over 2,700% for estates worth over £2million, which will attract a fee of £6,000.  At the other end of the scale, estates with a value of up to £50,000 will bear no fee. The government are keen to emphasise this change, highlighting that as a result, 25,000 estates each year will be exempt from paying a fee altogether. Explaining this to an Executor of a typical Surrey estate is going to be slightly challenging.

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