A list of frequently asked questions around the subject of probate including scope of the accreditation, eligibility and ongoing requirements.
consider the impact of any employees ‘holding out’ as principals.
If your firm is considering the appointment of a new principal, incorporating the firm, or changing the structure and/or ownership of the firm, it could have an impact on eligibility. Please discuss the implications of any intended changes with our regulatory support team +44 (0)1908 546 302 or firstname.lastname@example.org.
The Probate Regulations require firms to inform ICAEW as soon as practicable, but not later than 10 business days, after any event affecting the firm’s eligibility to be accredited. Otherwise, disciplinary action may be taken.
No. Schedule 2 paragraph 6 of the Legal Services Act 2007 defines probate activities as preparing any probate papers for the purposes of the law of England and Wales. Probate papers are papers on which to found or oppose a grant of probate (or grant of letters of administration).
Additionally, some firms have not fully appreciated that authorised work covers both probate and estate administration. While the Probate Regulations only require probate work to be undertaken or controlled by an authorised individual (AI), there are various other requirements of the regulations which mean that it is sensible for the AI (or HOLP/HOFA) to have an understanding of what authorised work is being done under their accreditation, ie, including estate administration, to ensure compliance with the probate regulations more generally.
Ultimately the AI/HOLP/HOFA will be held to account if the firm fails to meet its obligations under the regulations. So, while they might delegate aspects of ‘undertaking or controlling’ authorised work (regulation 3.3 stipulates that they can’t delegate this for probate work), they still need to know what work is being done and how it is controlled to comply with other aspects of the regulations and to be able to demonstrate that to us.
Always consider your firm’s competence and independence before you take on probate and estate administration work. Our Ethical considerations for probate practitioners helpsheet will help with this decision process. Proprietary probate systems also have checklists to prompt your firm with these considerations and ensure you gather all the necessary information.
Yes. These must be dealt with in accordance with our Clients’ Money Regulations as specified in the Probate Regulations. Specifically, monies received in connection with authorised work must be kept separate from other clients’ monies in a designated account. Each engagement for which monies are received in connection with authorised work must be held in a separate, individually designated account.
Yes. All authorised individuals need to keep their skills up to date with appropriate CPD training. We have found some staff conducting probate work under the supervision of an authorised individual who have not had adequate training.
The Clients’ Money Regulations stipulate that bank charges are not clients’ money and must be charged to an office account. Therefore you would need obtain agreement from the client, eg, through the engagement letter, to recharge them as a disbursement.
Yes. These must be carried out every year. To be fully effective these reviews should include both whole-firm and cold file reviews. Please refer to the full Probate Regulations for a list of the full requirements for firms authorised and licensed for probate work.
A questionnaire to assist you in complying with this requirement, is available here.
We recommend you time your first annual compliance review to coincide with completion of your ICAEW annual return, and then complete on each anniversary after that.
Yes. If you are a sole practitioner, you must provide your clients with details of your alternate in writing. If you are the sole authorised individual in a larger firm, you need to ensure that your fellow directors/partners understand that should you become indisposed, they will need to arrange for this work to be passed to someone who is eligible to undertake it. You could arrange for the appointment of an alternate in these circumstances and notify the client of this fact, as you would if you were a sole practitioner.
All probate firms must monitor the diversity of its principals and employees. ICAEW will collect this information every two years. Further information including a questionnaire template is available on the Diversity data collection webpage. Your firm’s data should be published on your firm’s website in a format of your choice. If your firm does not have a website, you must still publish the data on some appropriate form of documentation eg, as a paragraph in a letter of engagement or in advertising materials.
If the anonymity of individual members of staff may be compromised, you should adapt the information you publish accordingly, for example, by only publishing the less sensitive data.
It is a Legal Services Board requirement that ICAEW aims to visit all probate registered firms within two years of granting that firm’s license.
The visit will always:
You should ensure that authorised individuals, HOLPs and HOFAs (as applicable) are available for the visit.
Obviously we hope that all firms will have conducted some authorised work by the date of our visit. However, if your firm hasn’t undertaken any probate or estate administration work, as part of concluding the visit we will ask you to tell us when you consider an appointment in the future.
Use an engagement letter to advise clients of matters that must be put in writing. These should be sent to the client before starting any probate work. The Probate Regulations stipulate firms must advise clients of:
Further information about what to include in engagement letters is available at here.