Question to the Ministry of Justice:

To ask the Secretary of State for Justice, for what reasons the proposed reforms to probate fees were not brought to the House in the form of primary legislation.

The proposed changes to probate fees do not require primary legislation, as the power to introduce these changes is provided under section 92 of the Courts Act 2003 and section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. These powers expressly enable the Lord Chancellor to charge fees for anything dealt with by the courts, including the Probate Service, and at a level that exceeds the cost of that for which the fee is charged.

These powers are exercisable by the Lord Chancellor by way of secondary legislation in the form of a statutory instrument, subject to the affirmative procedure. Any income raised must be spent on funding an efficient and effective courts and tribunal service.

Our plans to raise the threshold from £5,000 to £50,000 will lift around 25,000 additional estates annually out of paying fees altogether and more than half of estates in England and Wales will pay no probate fee at all. Of those who do pay, around 60% will pay £250 – close to the current fee level – and around 80% of estates will pay £750 or less. No one will pay more than 0.5% of the total estate value and all fees are recoverable from the estate.

Any income raised must be spent on funding an efficient and effective courts and tribunal service. This allows the Government to subsidise other parts of the system that do not recover their costs in fees, including domestic violence proceedings in the family court and tribunal cases before the First-tier Tribunal concerning mental health.