The Ministry of Justice has published further guidance on its plans to hike probate fees in the face of fierce criticism.

The guidance, a question-and-answer style paper called ‘further information regarding interim arrangements for the probate service ahead of the new fees implementation', has been published in response to ‘questions raised so far’.

In the document, the MoJ said that if an 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’.

Current probate fees are £215, or £155 for those applying through a solicitor. On the new scale, estates worth more than £2m will be charged £20,000, those between £1.6m and £2m will be charged £12,000, while those below £50,000 will be exempt from charges. Estates worth between £50,000 and £300,000 will pay £300.

The MoJ describes the new structure as a ‘fairer banded system’ and said the fees will be used to fund the court service. It consulted on the proposals in February last year. Out of 831 respondents, fewer than 2% (13 responses) were in favour. 

One of the questions the MoJ attempts to answer is what happens in cases where there is a need for an HM Revenue & Customs assessment and if delays will mean incurring the higher fee.

The MoJ said in cases where a document is needed for inheritance tax purposes then it is possible to submit the appropriate forms to both HMRC and HMCTS Probate together.

‘We will not issue your grant until the approved IHT 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,’ the MoJ said.

The MoJ also said that no implementation date for the new rates had been set as yet but that a ‘mail-shot will be released immediately’ once it knows the date.

It added that any application received within working hours of the probate registry before the implementation date will be charged the current fee. Solicitors told the Gazette that there could be a ‘rush to the probate office’ ahead of the implementation with people wanting to capitalise on the lower fee.

The MoJ reiterated that any jointly owned assets (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,’ it added.

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