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.
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.
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
321 Avebury Boulevard
If you require further information about the application process, please email Regulatory Support or call +44 (0)1908 546 302.
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.
Applicants who wish to apply to become authorised individuals (including heads of legal practice) need to be appropriately qualified. ICAEW Chartered Accountants need to attend a short course and pass an assessment. To enrol on this course and for the assessment please visit SWAT UK Certificate in Probate and Estate Administration. Members who have attended this course and passed this assessment will need to apply under Probate Regulation 4.1a
ICAEW members who hold the STEP Diploma for Accountants and Tax Practitioners (Trusts and Estates) may be exempt from attending this course. Details of this exemption can be found in section 3 below. Members exempt from attending the course and passing the assessment will need to apply under Probate Regulation 4.1c.
Applications under Probate Regulation 4.1a can be made by completing application form – Application to appoint: authorised individual; head of legal practice; or head of finance and administration.
If you are not an ICAEW 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 to be appointed an authorised individual under Probate Regulation 4.1b by providing ICAEW with evidence of being awarded such a qualification.
Applications under Probate Regulation 4.1b can be made by completing application form – Application to appoint: authorised individual; head of legal practice; or head of finance and administration.
If you are not eligible to apply to be appointed as an authorised individual under Probate Regulations 4.1a or 4.1b, you will need to apply under regulation 4.1c. To apply under Probate Regulation 4.1c you need to provide ICAEW with evidence of your attendance at a course and passing of an assessment provided by a recognised professional qualification body which covered at least the qualification criteria for applications under Probate Regulation 4.1c set out in qualification criteria below.
1.1. In order to provide sufficient evidence, you must submit the following with your application form;
a) A copy of the syllabus/learning outcomes that covered the relevant exam(s) that you passed;
b) A document mapping the syllabus/learning outcomes to the criteria set out in the qualification criteria below to show where in the syllabus/learning outcomes these criteria have been covered; and
c) Proof of your relevant qualification. For example, a copy of certificate/certificates.
1.2. If you can provide evidence of having covered all the qualification criteria set out in the qualification criteria below except the following:
You can apply to be appointed as an authorised individual if you provide the evidence listed above as part of your application, In addition you need to confirm on the application form that you have read and understood the information relating to these two criteria. These can be found in the further information section on icaew.com/probate.
1.3. If you have been awarded the STEP Diploma for Accountants and Tax Practitioners (Trusts and Estates) by passing exams set under the qualification’s syllabuses of 2012 onwards you will not need to supply a copy of the syllabus that covered your STEP examination(s) (referred to in paragraph 2.1a above) nor the document mapping the syllabus to the qualification criteria set out in the qualification criteria below (referred to in paragraph 2.1b above). You must however provide proof of your qualification, for example, a copy certificate/certificates and confirm on the application form that you have read and understood the information on ICAEW’s website relating to the Legal Services Act 2007 and how it applies to probate work and how to deal appropriately with vulnerable clients (see paragraph 1.2 above). If you have passed exams set under syllabuses dated earlier than 2012 you must comply fully with the evidence requirements set out in paragraph 1.1 above.
2. Inability to satisfy qualifications criteria
2.1. If you are unable to provide evidence that your qualification covers all the qualification criteria set out in the qualification criteria below except for criteria 1.1 and 2.8 you must attend the SWAT UK Certificate in Probate and Estate Administration and pass the assessment. Then you must complete the application form below and provide evidence with your application form of your attendance on the course and of passing the assessment.3. Applications
3.1. Applications under Probate Regulation 4.1c can be made by completing application form – Application to appoint: authorised individual; head of legal practice; or head of finance and administration.
1. A general overview of:
1.1. The Legal Services Act 2007 and how it applies to probate work
1.2. The law of property, equity and trusts
1.3. Relevant taxation
1.4. Wills and intestacy
1.5. The validity, format and content of wills
1.6. Administration of Estates
2. Knowledge and understanding of:
2.1. The types of personal representative, their appointment and options
2.2. The duties and responsibilities of a personal representative
2.3. The types of grant of representation and when one is needed
2.4. Who can apply for a grant of probate and letters of administration
2.5. The procedure and preparation of papers for applying for a grant
2.6. When a matter is or could potentially be contentious and what advice needs to be given and or action taken
2.7. Clients, letters of engagement and complaints procedures
2.8. How to deal appropriately with vulnerable clients
2.9. What makes a will valid and why it may fail
2.10. Rectification of defects in a will
2.11. Affidavit evidence
2.12. Caveats and citations
2.13. Revocation and alteration of wills
2.14. How defects in a will can be rectified
2.15. Types of Legacies and why these can fail
2.16. The intestacy rules and trust provisions
2.17. Guardianship issues
(i) Income tax liability of the deceased up to the date of death
(ii) An overview of the reporting for inheritance tax purposes and the principles relating to the charge to tax – on death; on immediately chargeable lifetime transfers; on gifts with the reservation of benefit
(iii) IHT reliefs and exemptions
(iv) Calculation of IHT
(v) Payment of IHT
(i) Administrative duties and powers of personal representatives
(ii) Registering the grant and collecting in the assets
(iii) Receiving cash and paying debts
(iv) Insolvent estates
(v) Identifying beneficiaries
(vi) Payment of legacies
(vii) Income and interest
(viii) Dealing with estate income during the period of administration
(x) Variations and disclaimers
(xi) Tax issues
(xii) Requirements of a deed of variation
(xiii) Reporting requirements
Continuing professional development (CPD) is the process of tracking and documenting the skills, knowledge and experience that you gain both formally and informally as you work, beyond any initial training. It's a record of what you experience, learn and then apply.
The CPD process helps you manage your own development on an ongoing basis. It's function is to help you record, review and reflect on what you learn.
(a) ICAEW Probate Regulations
Regulation 3 of ICAEW’s Probate Regulations deals with the conduct of authorised work and imposes the following regulatory obligations on authorised persons:
3.1 ‘accredited probate firms must act in accordance with the fundamental principles set out in the ICAEW Code of Ethics issued by ICAEW’s Council. A firm must make arrangements so that it, its principles and employees comply with these regulations and the professional principles set out in the Act to:
a) act with independence and integrity;
b) maintain proper standards of work;
c) act in the best interests of their clients; and
d) keep the affairs of clients confidential.
3.2 An accredited probate firm shall only carry out authorised work which it is competent to perform.
3.3 An accredited probate firm must make sure that only authorised individuals undertake, or control the undertaking of, probate work on behalf of the firm.
3.4 An accredited probate firm must make sure that all principals and employees undertaking authorised work are, and continue to be, competent to carry out the authorised work for which they are responsible.’
In a licensed firm, the Head of Legal Practice will be responsible for taking all reasonable steps to ensure that the licensed firm and its principals and employees comply with their duties under the Probate Regulations.
(b) ICAEW Code of Ethics
A fundamental principle of ICAEW’s Code of Ethics is professional competence and due care. Section 130 states, among other things, that members (which include ICAEW affiliates) have an obligation ‘to maintain professional knowledge and skill at the level required to ensure that clients or employers receive competent professional service; and to act diligently in accordance with applicable technical and professional standards when providing professional services.’
In addition, Part B (applicable to members in practice) contains section 210 on professional appointments which states among other things that:
‘The fundamental principle of professional competence and due care imposes an obligation on a professional accountant in public practice to provide only those services that the professional accountant in public practice is competent to perform. Before accepting a specific client engagement, a professional accountant in public practice shall determine whether acceptance would create any threats to compliance with the fundamental principles. For example, a self-interest threat to professional competence and due care is created if the engagement team does not possess, or cannot acquire, the competencies necessary to properly carry out the engagement.’
(c) Requirement to undertake continuing professional development
Therefore, ICAEW’s regulations, code, and CPD arrangements place authorised probate practitioners and the authorised/licensed firm for which they work, under an obligation to ensure that they or those that work for them are, and continue to be, competent to carry out probate work.
In order to comply with this obligation, persons who conduct and/or supervise the conduct of authorised work are required to maintain and develop their skills throughout their career by completing sufficient development activity to ensure that they remain competent in their roles. To do this we recommend they use our ‘reflect, act, impact, declare’ (RAID) approach (outlined below) which requires practitioners to consider their development needs, how they can meet them and to create a plan of action. This requires them to reflect on such matters as expectations, responsibilities and knowledge gaps and to evaluate the effectiveness of the CPD they have done and whether it has enabled them to meet their objectives.
They must also keep a record of their CPD activities as they can be selected to show evidence of compliance by our quality assurance team through our Practice Assurance Scheme. ICAEW members are also required to complete an annual online CPD declaration, and may also be required to show evidence of compliance to our learning and professional development team through its annual monitoring processes.
Accredited firms are required to confirm that they have made arrangements to ensure that their principles and employees comply with the ICAEW Code of Ethics, ICAEW’s Probate Regulations, and the professional principles set out in the Legal Services Act 2007 (as outlined above) on their ICAEW annual declaration.
For further information on CPD please refer here.
How much CPD should I do?
Unlike some professional bodies, we don’t dictate how much CPD must be done. There are no set hours or points to attain. You simply need to complete as much development activity as you feel is required to remain competent in your role(s) using our ‘reflect, act, impact, declare’ approach set out below.
What activities count as CPD?
You don’t necessarily need to attend training courses to maintain CPD compliance. We recognise that people learn in different ways, through several different channels.
These are the popular ways practitioners stay up to date:
You should however undertake sufficient CPD covering the area of probate work to ensure you maintain your competency in this area.
For example, we would recommend that you keep abreast of changes to the law and procedure relating to probate work and ensure that you receive appropriate training in relation to any changes that have or will be introduced.
Keeping a record of your CPD
Please keep a record of the CPD activity you do in case you are selected to show evidence of compliance.
Approach to CPD requirements: reflect, act, impact and declare
We recommend that you take the following approach to your CPD requirements:
Consider your development needs and how you can meet them, and create a plan of action. Think about:
The following activities, if relevant to your role, could count as CPD:
Evaluate the effectiveness of what you have done. Are you satisfied that your actions have enabled you to meet your objectives, or do you need more work in this area?
Each year ICAEW members and accredited Probate Firms must declare their compliance by making a CPD declaration.
We recommend that you keep a record of your CPD during the year so that you can submit/produce this easily if required to do so.
Applicants applying for individual authorisation under Probate Regulation 4.1c who have attended a qualification course and passed an assessment that covers all the qualification criteria of this regulation except those relating to an overview of the Legal Services Act 2007; and dealing with vulnerable clients must, as part of their CPD requirements, read the guidance notes on these areas which can be found at the above links and declare on their application form they have done so.
Firms accredited for probate by ICAEW are required to comply with the Probate 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:
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
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.
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.
Firms that aren’t already subject to Practice Assurance can apply to be part of the scheme in one of two ways.
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
321 Avebury Boulevard
MK9 2FZ UK
Once we receive your completed probate application forms, we will draw up a standard contract. This includes the following obligations on the firm:
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.
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.
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’.
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.
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.
The questions cover:
* 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.
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.
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.
Please send your collated data report to ICAEW with your application form.
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.
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. ' If the firm is authorised rather than licensed, it should state that it is authorised.
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.
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.