Oh, Good heavens, I’d forgotten the awful hassle of having the final paragraph of the Oath be specific to the value band! And that was in the days when there was comparatively little time between preparing the oath and lodging it (whereas now there can be weeks and weeks before the IHT receipt is available for the Oath to be lodged – quite time enough to discover more assets or liabilities and have the net estate go over or under a threshold!
Julian Cohen, Solicitor
I assume that the wording of the Oath will need to be amended in an excepted estate to reflect the value bands but the value will be self-evident in an Oath in a non-excepted estate.
Cliona O’Tuama
Solicitor
Section 3 of the draft Non-Contentious Probate Fees Order 2017 defines the “assessed value of an estate” for calculating the fee. It appears to be the net estate passing under the Grant as shown in the IHT return.
The draft Regulation can be found at http://www.legislation.gov.uk/ukdsi/2017/9780111154854/contents
Section 3(3)© makes interesting reading.
Anthony Kalp
Berry & Lamberts Solicitors
I have seen discussion elsewhere to confirm that it is considered possible to apply for probate without the IHT421,albeit that the application will be ‘stopped’ to await the IHT421. The application and IHT421 can be married up at a later date so that the fee applicable is not affected by delays at HMRC.
Naomi Neville
SHOOSMITHS LLP
Our understanding is that you can submit a Grant application to the Probate Registry prior to 1 May with ‘IHT421’ to follow and still qualify for the current fee structure.
Geoff Dennis
OGR Stock Denton
I can’t see anything to corroborate this. My reading was the net estate for probate as per the last paragraph of the oath.
Surely an IHT based fee would throw up too many anomalies?
Balkrishna Patel
Stennett & Stennett
Will the new probate fee structure bring back promotion of the dreadful so-called “Asset/Family/Universal Protection trusts”?
Balkrishna Patel
Stennett & Stennett
Please note that STEP has issued a blog containing some FAQs received from the Probate Registry which might answer some of your queries:
Emily Deane
STEP
The following has been issued by Winchester Probate Registry regarding the new fee structure.
Further Information regarding Interim arrangements for the Probate Service ahead of the new Fees implementation
Update 3
We have sent you two previous mail shots regarding the changes to Probate fees which come into effect in May 2017.
It is our intention to as best we can to supply further updates in response to some of the questions you have raised.
Q. What happens in cases where there is a need for an HMRC Assessment will any delay mean I incur the higher fee?
In cases where you are required to submit an IHT 400 or any IHT document for assessment by HMRC for Inheritance tax purposes then it is possible for you to submit the appropriate forms to both HMRC and HMCTS Probate simultaneously. We will not issue your grant until the approved IHT 421 is received but we will mark your application as lodged. To assist us in not raising this as a query it would be advisable to clearly mark your application that the IHT document will follow after assessment.
Q. Do we have the actual date of implementation?
No we do not have the actual date of commencement yet. However we can assure you that on receiving that date a mail shot will be released immediately informing you of that date. HMCTS Probate would however like to work with you now to ensure that we reduce as much as possible the added burden on applications nearer that date. You can assist us in doing this by following the steps in the mail shot sent to you on Monday 6th March.
Q. How do I calculate the estate value that the fee will be charged upon?
The fee is calculated from the net value of the estate after deducting liabilities or debts from the total of assets and gifts – you can do this using the appropriate Inheritance Tax form.
• On an Inheritance Tax Summary Online application this figure will be the figure noted in the net estate value box.
• On form IHT 205 the net estate value for fees purposes can be found at Box F
• On form IHT 207 the net estate value for fees purposes can be found at Box H
• On form IHT 421 the net estate value for fees purposes can be found at Box 5
What is considered as a full application?
A full application for Probate purposes and therefore to qualify for the appropriate fee is defined as the following.
It must include:
• An full oath sworn by all deponents and commissioners
• An original will and codicil(where appropriate) endorsed by all commissioners and deponents.
• The appropriate number of correct copy wills an codicils
• An Inland Revenue account (with the exception of IHT 400’s/421’s where assessment is ongoing and it has been noted on the covering letter that it will follow)
• All associated documents including any affidavit evidence required at the time of submission, renunciations, Powers of attorneys
• The appropriate fee.
Upon receipt of an application in this form prior to commencement then the existing fee will be charged.
Settlers and Prelodgements are not considered as full applications and therefore submission of an oath for settling prior to commencement and a subsequent oath after commencement will result in the new fee being applied.
Q: When will the new fees be implemented – at date of death or date of application?
The new fees will apply to all applications received by the probate service on or after the implementation date of the new fees irrespective of the date of death. Any application received within working hours of the Probate Registry before the implementation date will be charged the current fee. Subject to approval of the necessary legislation by Parliament, we expect the new fees to take effect from May 2017, but the exact date will be confirmed nearer the time.
Q Is there to be any equivalent of the IHT instalment option for an asset rich / cash poor estates?
There will not be an instalment option available to pay fees. If the estate does not have enough cash to pay the fee, executors will be able to apply to the Probate Service to access a particular asset for the sole purpose of paying the fee.
Q. How does the new fee affect property held between cohabitating couples?
The law remains the same. Any jointly owned assets (e.g. property held as joint tenants) will not require probate, regardless of whether couples are married, in a civil partnership or neither. All couples are free to choose how they hold their property, and they can change to a joint ownership arrangement via the Land Registry.
Geoff Dennis
OGR Stock Denton
I wonder if everyone has seen the petition to have the fees reconsidered? Whether it will make any difference is another question but it made me feel slightly better by signing it !
michelle collins
Cozens Hardy LLP
Hi Michelle
Many thanks for sharing the link.
As the MoJ dismissed the concerns expressed by the vast majority in the consultation process, this is the way in which individual practitioners (and clients) can make their views known.
Practitioners and their clients might also consider flagging their concerns with their professional body and consumer bodies, respectively. The more support such bodies are able to demonstrate, the greater the chance the Powers That Be will actually listen.
Paul Saunders
Now up to 730 signatures. We need 100,000 for it to go back to Parliament
Graeme Lindop
Coles Miller Solicitors LLP
So much I don’t know.
The IHT 421 delay makes me very nervous. Should I tell clients to go elsewhere/disclaim on liability for the increased fee now.
I assume it’s for assets passing under the grant? Should we suggest everyone holds all their property as beneficial joint tenant with the intended beneficiary.
Probate bypass trusts are of great interest. Where can I buy one?
I’m in for £5 on anything.
David Martin
Kidd Rapinet
Users might like to note that the joint select committee for Statutory instruments has sent the probate fees draft SI back to both house as being “Reported for doubtful vires and for unexpected use of powers” - see link here:
https://www.publications.parliament.uk/pa/jt201617/jtselect/jtstatin/152/15203.htm#_idTextAnchor003
David Hartles
H W Fisher & Co