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Probate and Alternative Business Structures

On 15 July, the House of Commons approved ICAEW’s role as approved regulator, which came into force as law on 17 July; the statutory instrument approving ICAEW’s role as a licensing authority was laid on 22 July and became law on 14 August. ICAEW is now accepting applications from firms for accreditation to offer probate services.

Consumers looking for probate services are able to use appropriately qualified ICAEW Chartered Accountants as an alternative to traditional providers.

Update, September 2014

In 2011, ICAEW explored the possibility of licensing firms for the reserved legal service of probate.  In order for it to secure the power to do this, it had to become an approved regulator and licensing authority under the Legal Services Act 2007. In February 2012 it entered into negotiations with the Legal Services Board (LSB) and, in December that year, formally applied to the LSB. The LSB finally gave its approval in December 2013 and, in March 2014, the Lord Chancellor moved to recommend the designations. 

In order to effect the designations for probate and alternative business structures (ABSs), it has been necessary to put secondary legislation through parliament, which has proved to be a protracted process and taken far longer than ICAEW and the LSB had expected. The summer recess could have meant the designations being postponed until October or later. 

On 15 July, however, the House of Commons approved ICAEW’s role as approved regulator, which came into force as law on 17 July; and on 22 July, the statutory instrument approving ICAEW’s role as a licensing authority was laid and became law on 14 August. 

We are now accepting applications for authorisation and licensing. Application forms are available from this page.  

Over 250 firms have already expressed interest in accreditation and we believe this number will grow significantly once the opportunities afforded by probate and the use of ABSs are more fully understood.

How to apply and application forms

ICAEW is now accepting applications for authorisation and licensing in accordance with the Probate Regulations

An authorised firm is one where all the principals and owners of the firm are individually authorised to carry out probate work.

A licensed firm (also known as an Alternative Business Structure or ABS) is one where not all principals or owners are authorised for probate (although at least one principal – either an individual or a corporate entity - must be an authorised person). 

In order to apply for probate accreditation, firms will need to complete and return a firm application form and pay the appropriate fee. Firms will also need to be subject to ICAEW’s Practice Assurance Scheme and comply with diversity monitoring requirements. Further information regarding fees, the Practice Assurance Scheme and diversity monitoring can be found on this page. 

If a principal applying for authorisation is a body, you will need to complete an application to become an authorised body

In accordance with the Probate Regulations, only individuals who are suitably qualified will be able to carry out, or control the undertaking of, probate work. These persons will need to apply to become authorised individuals by completing the application form for authorised individuals. Further information regarding ICAEW’s qualification criteria for probate is set out below. 

If firms wish to become licensed, they will need to appoint a Head of Legal Practice (HoLP) and Head of Finance and Administration (HoFA). These persons have special compliance responsibilities under the Legal Services Act 2007 and the Probate Regulations. In order to appoint a HoLP and HoFA, firms will need to complete an application to appoint a Head of Legal Practice and Head of Finance and Administration. 

If a non-authorised person holds a ‘material interest' in a firm that is seeking to be licensed (as defined by the Probate Regulations) that person will need to be approved by ICAEW. They and the firm will need to complete an application to approve a non-authorised owner of a licensed firm. 

Firms should note that applications to appoint some authorised individuals; HoLPs; HoFAs and non-authorised owners will require those persons to undergo Disclosure and Barring Service checks (formerly known as CRB checks). Further information about these checks is set out in the application forms. 

You may find it helpful to refer to these flowcharts which outline the application processes for authorisation and licensing and the forms that need to be filled out. 

All forms should be completed and returned to: 

Professional Standards, Regulatory Support 

ICAEW

Metropolitan House

321 Avebury Boulevard

Milton Keynes

MK9 2FZ 

UK

If you require further information about the application process, please email Regulatory Support or call +44 (0)1908 546 302. 

Download application forms 

Download the application forms you need, save them to your computer and fill them in electronically, saving as you go. Once you've completed each form, print and sign it. Remember to save the completed version for your records. 

Qualification criteria

Members

We hope to be able to accept applications from late September 2014. If you want to make an application, you will need to be appropriately qualified. For ICAEW Chartered Accountants, this will involve attending an ABS short course and passing an assessment.

To enrol on a course please visit SWAT UK Certificate in Probate and Estate Administration.

Non members

If you're not a member, but you hold a qualification issued or recognised by an approved regulator (other than ICAEW) that entitles you to undertake probate work (for example, a solicitor) you may apply for individual authorisation by providing ICAEW with evidence of being awarded such a qualification.

For those candidates who are not members of ICAEW or who do not hold a qualification issued or recognised by an approved regulator (other than ICAEW), but who consider themselves to be ‘otherwise qualified’ to undertake probate work, ICAEW is currently producing qualification criteria which must be met in order to show sufficient evidence of being appropriately qualified. These will be available soon.

Fees

Fees include: 

  • the fee for the Disclosure and Barring Service standard check; 
  • the probate registration fee; and 
  • the probate compensation scheme levy.
Probate regulation

Firms accredited for probate by ICAEW are required to comply with the Probate Regulations.

Probate Compensation Scheme Regulations

ICAEW has established a Probate Compensation Scheme to accord with the requirements of the Legal Services Act 2007. 

In order to become accredited for probate, firms need to pay an annual levy to ICAEW to assist in funding this scheme.  

The scheme is intended to compensate individuals and SMEs for loss suffered as a consequence of:  

  • fraud or other dishonesty by the accredited probate firm in conducting authorised work (ie, probate and estate administration); or 
  • a failure by the accredited probate firm to account for monies received in the course of authorised work. 

In accordance with the Probate Compensation Scheme Regulations, grants from the scheme will be wholly at the discretion of the Probate Committee and will be subject to a limit of £500,000 per estate. Applicants will usually need to apply to ICAEW for a grant within 12 months of the loss first coming to their attention, and will need to show that they have exhausted all other available remedies.  

For further information about the scheme, or how to make an application, please email the Regulatory Policy Manager or call +44 (0)1908 546 307

Professional Indemnity Insurance

Accredited probate firms are required to comply with ICAEW’s professional indemnity insurance arrangements and hold a minimum limit of indemnity of £500k per claim for authorised work (ie, probate and estate administration). We advise all firms to speak with their broker to ensure that these activities are covered by their existing and any future policies. 

Some firms may already hold PII at this limit and so will not need to take any further action.

Other firms may wish to increase their overall limit of indemnity to cover all the firm’s activities. In some cases it may be possible to arrange an extension of cover at this limit purely for claims arising in connection with probate work or estate administration. You should discuss with your broker the right option for your firm.

ICAEW's Practice Assurance scheme

It's a requirement of the Probate Regulations that firms accredited for probate be subject to the Practice Assurance scheme. The scheme provides a framework of quality assurance principles, and offers practice support and advice, together with monitoring visits. 

ICAEW member firms are already subject to Practice Assurance and do not need to do anything further. You can check whether you are an ICAEW member firm.  

If your firm doesn’t meet the definition of an ICAEW member firm, it will need to apply to be part of the scheme. 

How to apply to be part of ICAEW’s Practice Assurance scheme 

Firms that aren’t already subject to Practice Assurance can apply to be part of the scheme in one of two ways. 

  1. If your firm already has a C00 number, and you've completed an annual return in the last 12 months, complete and return any required probate application forms. 
  2. If your firm doesn’t have a C00 number or you haven’t completed an annual return in the last 12 months, complete and return:
  • any required probate application forms;
  • a copy of the last set of accounts of the firm and any connected entities listed in the application to become an accredited probate firm; and
  • examples of recent promotional materials and/or advertisements 

In either case, you should indicate in any covering letter or email that your firm is not currently subject to Practice Assurance. Please send your completed probate application forms to:

Professional Standards, Regulatory Support
ICAEW
Metropolitan House
321 Avebury Boulevard
Milton Keynes
MK9 2FZ UK 

What happens next 

Once we receive your completed probate application forms, we will draw up a standard contract. This includes the following obligations on the firm: 

  • to act in accordance with the Practice Assurance standards; 
  • to comply with the Code of Ethics and the Clients’ Money Regulations as if the firm were a ‘member firm’, ‘practising firm’ or ‘member’ as appropriate; 
  • to demonstrate a commitment to comply with the Money Laundering Regulations 2007; and 
  • to complete an annual return, be supervised and monitored. 

Fee scales

We agree fees on a firm-by-firm basis based on individual circumstances and risk, which we assess during the application process. As an indication, a firm with one ICAEW principal and one non-ICAEW member principal should expect to pay no more than £310 (plus VAT) per year. Fees for larger firms will depend on the information provided at the time of application, including the firm's size, complexity and risk-profile, and the amount of affiliate fees already paid by the firm.

We charge an application fee when you submit the signed contract to ICAEW. We calculate the application fee based on the period between the start of the contract and 31 December. This means we can bill the annual fee on a calendar-year basis.

What being part of the Practice Assurance scheme via a contract means for you

The monitoring visit will be conducted in accordance with an agreed cycle, typically once every eight years for small firms or annually for large or high-risk firms.

If you have any queries regarding the scheme, contact Michelle Giddings, Quality Assurance Department, on + 44 (0)1908 546 251 or by email.

Use of legend 'A member of the ICAEW Practice Assurance scheme'

Once we've conducted our first monitoring visit to the firm, and are satisfied that the firm has addressed all the matters we've identified as ‘principal findings’, we write to the firm to confirm that it may use the legend ‘A member of the ICAEW Practice Assurance scheme’.

Diversity data collection

What's the purpose of collecting this data? 

The Legal Services Act 2007 includes a specific regulatory objective to 'encourage a strong, independent, diverse and effective legal profession' within firms supplying reserved legal services such as probate. 

The Legal Services Board (LSB) requires all its authorised regulators (including ICAEW) to support this objective by collecting and publishing data on the diversity of staff within the firms it regulates to provide reserved legal services.  

What's involved?

As part of each probate application, firms are encouraged to collect, collate and publish data on the diversity of their workforces.  Firms are also encouraged to provide summary information to ICAEW in order that ICAEW can publish data showing the diversity of the firms it regulates to provide reserved legal services. Only summary information will be reported; your firm will not be identified.

You should provide information to your staff on how the data will be collected and published to reassure them that their anonymity will be preserved. 

What do the questions cover?

The questions cover:

  • job role 
  • age 
  • gender 
  • disability 
  • ethnic group 
  • sexual orientation* 
  • socio-economic background 

* Sexual orientation should not be included in your published data

Completion of the questions is optional and each question has a ‘prefer not to say’ option.  

How should I collect this data?

If you do not already have the data available, ICAEW has created a model questionnaire that we ask you to encourage your staff to complete.  

If you do not have processes in place to ensure the anonymity of your staff, we provide the option of an online questionnaire that you may prefer to use to encourage staff participation. 

How should I publish this data?

When publishing this data, you should be sensitive to the possibility that, if the data is collected from relatively small data-sets, individual staff members may be able to be identified. The Equalities and Human Rights Commission states it is important that you do not breach workers’ or applicants’ confidentiality, or reveal anything which might enable someone to work out information about another person which was provided in confidence.  

Therefore, if anonymity of individual members of staff may be compromised, you should adapt the information you publish accordingly.

How should I provide this data to ICAEW?

Please send your collated data report to ICAEW with your application form.

Next steps

  1. View the questionnaire
  2. Either download the questionnaire and send it to your staff in paper format for completion. You will be required to aggregate the results and append your collated data report to your application form
  3. Or ask the applications team to send you a link to the online questionnaire which you then provide to your staff.  This will be a unique link for your firm only. Once the online survey has closed, ICAEW's data management team will provide a summary report for inclusion on your application form.  To ensure the anonymity of respondents, summary reports will only be sent if 10 or more respondents have completed the question.
Register of ICAEW accredited probate firms
Section 87 of the Legal Services Act 2007 requires ICAEW (as a licensing authority) to keep a register of the firms it accredits for probate.
Legends

Firms can use their own form of words to cover their licence, using the guidelines set out in The names and letterheads of practising firms. However, the probate licence is restricted to uncontested probate, so you need to make sure the description does not imply that the firm provides contested probate services as well. 

Authorised firms may use the legend: 'Authorised by the Institute of Chartered Accountants in England and Wales to carry out the reserved legal activity of non-contentious probate in England and Wales. ' 

Licensed firms may use the legend: 'Licensed by the Institute of Chartered Accountants in England and Wales to carry out the reserved legal activity of non-contentious probate in England and Wales.' 

If the firm is regulated by ICAEW in other areas (in addition to probate), it can use a mixed legend; for example: 'Registered to carry on audit work in the UK and Ireland; regulated for a range of investment business activities; and licensed to carry out the reserved legal activity of non-contentious probate in England and Wales by the Institute of Chartered Accountants in England and Wales. ' 

Accredited probate firms must refer to the register of accredited probate firms. A suggested disclosure is: ‘Details of the firm’s probate registration can be viewed at icaew.com/probate, under the firm’s reference number which begins C00.’

You can display this disclosure on the firm's stationery, website or engagement letter. Further guidance on this statutory disclosure can be found in the Services Directive Helpsheet.
Further information
Contact us

If you have any general questions about accreditation, please call +44 (0)1908 248 250.  

If you have questions about your recently submitted application for accreditation, please email Regulatory Support or call +44 (0)1908 546 302.