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The medieval church courts which took a close interest in the estates of those who died were notorious for their rapacity and the fees that they charged for probate were, until 1858, a matter of considerable public concern. From 1694 the Government used the probate of wills and the granting of administrations as a means of raising revenue.

Contents

Church Court fees for probate

Following generations of complaint Henry the Eighth, by statute in 1530, restricted the charge that could be made for proving a will or granting an administration when the estate was worth less than £5, to six pence payable to the scribe. For those with goods worth between £5 and £40 the charge was 3s 6d, of which 2s 6d went to the court official and 1s 0d to the scribe. For those with goods over £40 the charge was 5s 0d, divided equally between the official and the scribe, though the latter could ask for an alternative rate of a penny a line for every ten lines each ten inches long.

These figures remained in force for over a hundred years but 300 years later the official Returns respecting the Jurisdiction, Records, Emoluments, and Fees of Ecclesiastical Courts (House of Commons, 1830) show considerable variations in the cost of proving a will.

In the Peculiar of Banbury, Thame, Aylesbury and Buckingham, for instance, the average charge for a will or administration was £3 3s 6d, of which (in the case of wills) 3s 6d went to the judge, 4s 2d to the principal registrar, 1s 0d to the apparitor (the court beadle) and 6d to the seal keeper. The balance went to the deputy registrar who provided the clerks and the office. He charged additional fees for preparing an affidavit about the value of the estate and for engrossing the probate, these depending on the value of the estate and the length of the will.

At Huntingdon, the total fees ranged from £1 8s 10d for an estate of less than £20, to £14 1s 0d for one worth over £8,000. Here the commissary and official received 1s 3d each, the apparitor 1s 0d and the registrar the balance. At Sudbury the charge for a ‘pauper estate’ (under £5) was 5s 6d. At Gloucester most wills were between £100 and £300 (for which the charge would be £2 5s 6d and £3 5s 0d) and ‘very rarely’ above £2,000. In Durham, a will above £20 was charged at 8s 6d for the chancellor, 10s 0d for the registrar, 1s 6d for oaths, 4d for the seal, and 8d for the apparitor, the deputy registrar getting 1s 1d for each folio of 90 words for engrossing, registering and parchment. The Consistory of Chester claimed to have the lowest fees in the kingdom, quoting £2 5s 11d for an average estate of £450 and a will of fourteen folios of 90 words, including parchment. The charge for parchment might vary according to the amount used, but at Worcester there was a standing charge of £2s 6d. In many cases, there were extra fees for a second executor, for codicils, and so forth. In the Devon courts 3s 6d was charged for ‘alphabeting’ the will. In places where the parties were represented by proctors their additional fees probably doubled the cost.

From 1796 the courts were required to send copies of all their grants to the Estate Duty Office and for this they were paid out of the tax revenue six pence for every folio of 90 words for wills, and 3s 4d for each administration.

Church Court probate inventories

In medieval times, the executor who misappropriated a deceased’s goods had been a regular occurrence in literature and so inventories of those goods came to be asked for, mainly to prevent such dishonesty, and these often survive, mostly between the mid-16th century and the mid-18th century.

The limitations of probate inventories as a source of estate valuations has often been debated and it has become clear that they frequently omit many goods, they take no account of land held and, although they generally included details of money owed to the deceased, they did not list his or her debts.

As with probate accounts (mentioned below) in the 18th century, inventories were often only called for by creditors to obtain details of the available assets before embarking on litigation against the executors. The practice of calling for inventories in the Prerogative Court of Canterbury stopped in 1782, ‘in consequence of the heavy expense the parties were put to’, and they then very seldom occur except by order of the court and in grants of administration to the guardians of minors.

Church Court probate accounts

Traditionally, a year was allowed for the winding up of an estate and at the end of that time the courts asked to see the probate accounts. After 1530, administrators might forfeit the bond which they had earlier given if they did not produce an account. Sadly, only about 1% of accounts survive and that rather randomly, most dating from the late 1570s to 1685 (though there is a good run for east Kent from 1569 to 1740). After 1685 accounts were no longer called for except on behalf of a minor, or by the next-of-kin or a creditor of the deceased.

Church Court valuations

With the decline of the inventory in the 18th century and the introduction of a developed series of stamp duties (as described below) in 1780, it is probably no coincidence that the church courts began to endorse on their files of original wills and/or to note in their act books (or, as at York, in their calendars) a valuation of the personal estate of the deceased, and that the fees charged by the courts came at the same time to be linked to that valuation.

Such notations appear on the original wills in the Hitchin Division of the Archdeaconry of Huntingdon early in 1780. In the Prerogative Court of Canterbury rough valuations begin to appear in some sections of the probate and administration act books in 1791 and are regularly given from 1792, sometimes at the end of the entry but more usually in the left margin. In the early years there are periods where the figures appear without a pound sign, as ‘sub 100’ (i.e. under £100), which may mystify the searcher.
From 1796 until 1858 when they were abolished, the church courts used the tax bands introduced by William Pitt (as described below) as the basis for their entries. They were, of course, valuations of the personal estate only, taking no account of debts but including the value of leaseholds for years. In many courts the fees charged by the court officials for grants of probate and administration varied according to these scales.

Taxation

Prior to 1949, there were three quite separate and concurrent ways in which property passing at death under a will or administration was taxed. The tax historian Stephen Dowell said that they were ‘destitute of foundation in any common principle’ and ‘replete with anomalies’ and this soon becomes clear in any attempt to summarise them.

Stamp Duties

Probate was first used to raise revenue for the Government when Stamp Duties were introduced into England from Holland in 1694. The parchment or paper grants of probate and administration handed by the church courts to the executors in cases where the personal goods were worth more than £20 were first taxed at five shillings (as the blue revenue stamps on surviving originals show), this amount being collected by the issuing court. The tax was later increased to ten shillings.

The widespread use of stamped (or taxed) paper in Holland was commented upon by Adam Smith in his Wealth of Nations (1776) and in 1780, the government of Lord North, who admired the system, restricted the ten shilling stamp to estates worth from £20 to £100, and taxed estates worth £100 to £300 at £1 10s 0d, and those worth more than £300 at £2 10s 0d. These amounts were increased and additional scales introduced in 1783 and 1789, and in the latter year the upper figure became ‘over £5,000’ on which the tax was £20.

During the course of the wars with France, the upper figure was extended, first to £10,000, next to £100,000, then to £500,000 and finally in 1815 to £1,000,000, the tax also being increased (for estates worth more than £600 in 1801 and 1804, and for those worth more than £3,000 in 1815) and by 1815 it was producing £500,000 a year.

In 1795, William Pitt made certain of his revenue from this source by placing a penalty on anyone who administered the property of a deceased person without first obtaining a grant of probate or administration within six months of the deceased’s death. As a result, for the first time since the weakening of the church courts in the seventeenth century, the probate of a will had thus become compulsory. In 1815 the tax on grants of administration was very unfairly increased so that it was one half more than that on grants of probate.

These charges were levied on the whole of the personal estate without allowing for debts, though by the 1815 Act a rebate for debts could be claimed within three years.

Between 1815 and 1853, the tax bands for wills were: under £100 (taxed at 10s), £200, £300, £450, £600, £800, £1,000, £1,500, £2,000, £3,000, £4,000, £5,000, £6,000, £7,000, £8,000, £9,000, £10,000, £12,000, £14,000, £16,000, £18,000, £20,000, £25,000, £30,000, £35,000, £40,000, £45,000, £50,000, £60,000, £70,000, £80,000, £90,000, £100,000, £120,000, £140,000, £160,000, £180,000, £200,000, £250,000, £300,000, £400,000, £500,000, £600,000, £700,000, £800,000, £900,000, £1,000,000 and above £1,000,000 (taxed at £15,000). It is important to include the word ‘under’ in any quotation of these figures.

An attempt was made to extend these charges to Scotland in 1804 but they were largely evaded there until 1808. They were first imposed in Ireland in 1774 but with lower rates than in England until 1842. The joint tax yield in the United Kingdom from this source first reached £1,000,000 in 1837.

Gladstone tried to reform the system in 1853, saying that the tax scales were arbitrary, they took no account of really large estates, there was no reduction for debts, the different rates for grants of probate and administration were wholly indefensible, and the tax did not touch settled personal property (such as money in a trust) or any form of land other than leases for lives. He failed, though new tax rates were introduced for every £100,000 over £1,000,000 in 1859 and the limit of exemption was raised from £20 to £100 in 1864.

Probate Duty

In 1880 the different scales for probates and administrations were abolished by Lord Iddesleigh and a unified scale introduced, but Gladstone replaced this in 1881 with a 3% tax on the net estate after allowing for debts. Smaller estates paid less: those under £100 were exempt, those under £500 paid two per cent, and those under £1,000 two and a half per cent. Estates worth less than £300 would pay just fifteen shillings for court fees, but those worth £100-£300 paid thirty shillings in tax also.

This duty was fundamentally different, the tax now being reckoned on the value of the net personal estate as calculated in the stamped and receipted affidavit which had to be filed in order to obtain a grant of probate or administration. It is thus sometimes called Estate Account Duty. In 1881 also, payment of the 3% tax was allowed to cover the 1% duty payable under the Legacy and Succession Duty Acts (see below), so that a fusion of the three taxes partly resulted.

The Finance Act of 1894 went further and Estate Duty then became payable on the principal value of all property, real and personal, settled or not settled, which passed at death, after deduction of bona fide debts and reasonable funeral expenses. A series of tax bands was introduced instead of the overall 3% rate and from 1894 to 1907 they were: under £100 (exempt), £500 (taxed at 1%), £1,000, £10,000, £25,000, £50,000, £75,000, £100,000, £150,000, £250,000, £500,000, £1,000,000 and over £1,000,000 (taxed at 8%).

Many subsequent alterations were made to the tax bands in the twentieth century and by 1963 the exemption figure had risen to £5,000 but the tax on estates over £1,000,000 had increased to 80%. Estate Duty continued until the introduction of Capital Transfer Tax in 1975, but no records of its administration survive except insofar as those from 1881 to 1903 are included in the records at The National Archives.

Legacy Duty

Running in parallel with the above duties on grants of probate and administration was an additional tax called Legacy Duty. It was first introduced by Lord North in 1780 as a stamp duty on receipts for legacies and on receipts for any part of the residue of an estate. The stamp was 2s 6d for receipts on amounts under £20, five shillings for those between £20 and £100, and ten shillings for anything above £100. This duty was increased by William Pitt in 1789 but was largely evaded as it was not compulsory to give or to ask for a receipt.

However, in 1796 Pitt introduced the well-known Legacy Duty Act which taxed bequests of personal property according to the degree of relationship of the recipient. He was unable to get a similar scheme to tax bequests of landed property through Parliament. A ‘legacy’ is technically a gift of personal goods or money in a will, whereas a gift of land is a ‘devise’. In 1796 the tax affected only legacies of more than £20 to persons other than wives, children, parents and grandparents, and the residues of personal estates (not including land) worth more than £20. It is thought that the tax initially affected only about a quarter of all wills and administrations.

The tax rates introduced in 1796 were 2% (on legacies to brothers and sisters and their descendants), 3% (to aunts and uncles and their descendants), 4% (to great-aunts and great-uncles and their descendants) and 6% (to all others including ‘strangers in blood’). The rates were increased in 1804 to 2.5%, 4%, 5% and 8%.

In 1805 Pitt increased the last class to 10% and introduced a new 1% tax on legacies (still of more than £20) to descendants of the deceased. It applied also to legacies charged upon land or to be paid by the sale of land. Perhaps 75% or 80% of all wills and administrations were now affected.

In 1815, during the last year of the war with France, the lineal ancestors of the deceased were also taxed at 1%, the other rates being then increased to 3%, 5%, 6% and 10%. Only the husband or wife of the deceased remained untaxed.

Legacy Duty affected only personal property which passed by will (not money in a trust) and did not concern itself with land (except as decided in 1805). It continued at the above rates until 1881, being only partly merged with the other duties in that year. It was not abolished until 1949.

The records of the collection of this tax 1796-1903, most important for the genealogist, may be seen at The National Archives and on microfilm.

Succession Duty

The Succession Duty Act of 1853 was one of Gladstone’s partial successes and was only passed after prolonged debate. It charged all the property of the deceased, landed or personal, ‘to which there was a succession’, even when there was no will or administration, but excluded personal property already subject to Legacy Duty, except that leases for years were now to be reckoned as realty and not personalty. Estates worth less than £100 were exempt as was any succession of less than £20. Bequests to spouses were also exempt.

This tax also depended on the relationship of the recipient to the deceased and was fixed (in the same categories as Legacy Duty) at 1%, 3%, 5%, 6% and 10%. Those recipients married to others of nearer consanguinity than themselves were charged at the lower rate.

In the case of land, the appropriate percentage was calculated on a figure obtained by multiplying the net annual value of the property (the annual return from the land less the value of any mortgage or capitalised annuity charged on it) with a figure based on the life expectancy of the recipient ‘successor’. Tables showing how annuities were to be capitalised, according to the then age of the recipient, formed part of the Act. A division of property between three sons of different ages would produce three different rates of tax for each third of the property.

The Succession Duty Registers 1853-1903 may be seen at The National Archives but are not separately indexed. For references to them one has to rely on notes written on the Legacy Duty abstracts. They deal with the land according to title, showing parcel by parcel where it was held and whether it had been acquired by deed or settlement. Each parcel is valued separately, and the record shows its annual value (‘AV’ or ‘NAV’) and the succession valuation as calculated by the registrar.

The tax on land could be paid in eight yearly or sixteen half-yearly instalments and there were provisions for adjustments for timber, advowsons, manors, mines and property which produced a fluctuating income. Frightened opponents of the scheme had suggested that as much as £4,000,000 would be raised in revenue in a year but because of a miscalculation arising from the exclusion of settled land, the tax only produced £564,000 in 1859.

In 1881, the lower ranges of Probate Duty were brought together with the Legacy and Succession Duties but Succession Duty was not itself abolished until 1949. From 1853 persons domiciled overseas and from 1837 those killed on active service had been exempt from these taxes.

Principal Probate Registry

When the Principal Probate Registry was set up in 1858, the simplified system then introduced meant that for an estate worth less than £100 the fee for probate was a shilling; larger estates up to £4,000 paid 1s 6d in the pound. A will up to three folios of 90 words in length cost 4s 6d to register. To search the indexes cost a shilling.

The printed indexes or General Calendars of Grants of Probate and Administration that were now produced each year showed the ceiling or upper figure of the tax band in which the gross personal estates were valued, in effect continuing the practice of the church courts.

This figure appeared in the General Calendars of Grants until 1 June 1881 when it was replaced by an exact figure of the gross value of the personal estate, down to the last shilling and penny. This is the value at the time of death and before the payment of debts and funeral expenses. For the amount of the debts one needs to ask for a copy of the grant (or act book entry) as this shows both the gross and net figures. Photocopies of the probate acts can be obtained at no extra charge when ordering a copy of the will.

Because of variations in the way in which the returns were made by the district registries set up in 1858, there are occasional omissions of one or other of the figures. The original accounts from which they were drawn, except for a few samples now at The National Archives, have been destroyed.

These index figures can be very misleading if taken alone. Lord Hotham died in 1872 and the printed indexes show that his personal estate was ‘under £25,000’. The Succession Duty Registers at The National Archives reveal that his estates in Yorkshire were valued at £305,302 16s 0d.

In cases where an executor or administrator paid the debts of the deceased and, as a result, the gross figure fell into a lower tax band, the Estate Duty Office could (under the 1815 Act) make a refund, but an application had to be made within three years. In these cases after 1858 the indexes will have a manuscript note, saying for example, ‘£3,200 allowed 8 January 1864’.

This gross figure of the personal estate continues in the printed indexes until 1897 and it was only in 1898 that the value of unsettled real property, that is property which was not part of a settlement or trust, began to be included in the figure. In 1926 settled property was also included if the settlement or trust, ended with the deceased’s death (so that the property was then at his or her absolute disposition). However, the figure for the settled part of the property is then given separately and may appear in the indexes a year or so after the first grant. The value of a trust fund which is not at the disposal of the deceased is thus still omitted from the printed figure.

Acknowledgment

This article has been adapted with permission from sections of Anthony Camp’s three articles ‘Estate Duty Office (Death Duty) Registers’, ‘Probate Valuations and Fees’ and ‘Wills in the 19th century’ in Family Tree Magazine (UK; http://www.family-tree.co.uk), vol. 17, no. 12 (October 2001) pages 19-21, vol. 18, no. 1 (November 2001) pages 8-10, and vol. 18, no. 2 (December 2001) pages 14-16.


 

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