Contentious probate

Picture by Clint Randall

Picture by Clint Randall - Credit: Archant

Dealing with the probate process is often emotional, but if it’s contested, or contains unexpected instructions, things can quickly turn sour. Jonathan Sawtell-Gist is a Contentious Probate specialist with BPE Solicitors based in Cheltenham

Contentious probate has seen an exponential rise in litigation over the last decade. Historically, the demand for support in this area was relatively low, and experts were rare. But rising property prices and increased home ownership has led to larger estates, and with more at stake, there is a greater likelihood of dispute.

Times are hard, and with many approaching retirement to find that their investments have not performed as expected, sadly the death of a relative can be seen as an opportunity to ‘top-up’ the retirement fund. Whilst such cases are the exception rather than the rule, they exist. Ensuring wills are correctly drafted can save heartache for the family in the long run.

What is probate?

Probate is the legal process by which the stipulations of a will are carried out. Executors are people charged by the deceased to carry out the wishes contained within the will. Usually, they’re legally required to apply for a ‘Grant of Probate’ to take legal responsibility for executing the estate. In the past, that has been fairly simple; a small fee was paid, which BPE used to cover, but changes are afoot.

Making up the deficit

As if mourning and dealing with the will wasn’t upsetting enough, impending changes to the fees for probate could worsen the situation. The court system is running at a deficit – it isn’t generating enough income to fund the entire system. The Probate Court is not overly guilty of this, but has been identified as having the potential to increase costs, leading to a review of fees.

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The Government’s consultation closed in April and, subject to final adjustments, will at some point come into force. The impact will greatly increase the cost of obtaining a Grant of Probate, from a flat fee, to a percentage of the estate value. Currently, the executor of a £2 million estate would face a fee of £155.

Under the new system, it’ll be £20,000.

Shouldering the burden

The proposed fee structure is 1% of the estate value – a massive increase, and one that solicitors will not be able to absorb. While it’s hoped that the fee can be drawn against the estate, with inheritance tax and possibly capital gains tax coming into play, added to other costs, this is a huge fee to levy against the estate, and one that in many cases will simply not be affordable.

The risk of executors acting independently or well-meaning but inexperienced solicitors trying to make pre-emptive arrangements to mitigate this impact is concerning. The legal red-tape that people could quickly become entangled in could be crippling, adding yet another consideration to a well thought out will.

Pressure upon grief

The real tragedy is that there may be a great many executors currently mourning a loved one, delaying the application for probate because they’re grieving. That delay could gift £20,000 of their inheritance to the government should the changes come into effect sooner rather than later.

Putting pressure on those suffering grief seems unfair and, considering the Probate Court is not the primary drain on the courts system finances, it seems particularly unjustified.

But it deals with high value estates, and considering the old adage: ‘the only certainties in life are death and taxes’, it’s perhaps not surprising that estates of the deceased are to be the vehicle for recouping costs incurred in other courts.

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