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Where there's a will, there's a Regulator (or three...)

22 September 2020

An overview of the regulatory framework for accountants seeking to provide or providing probate services, including consideration of potential areas of risk

The Legal Services Act 2007 sets out a number of 'reserved legal activities' which, until recently, have been the sole preserve of legal practitioners. Examples include the exercise of a right of audience, the conduct of litigation and the administration of oaths. However, in 2014 and 2019 the ICAEW and ACCA respectively were authorised by the Legal Services Board as approved regulators of non-contentious probate services, thereby allowing accountants and accountancy firms regulated and accredited by the ICAEW and/or ACCA to offer probate services to their clients.

Registering to provide probate services

Accountancy firms regulated by the ICAEW or ACCA will need to apply to either the ICAEW or the ACCA to become an authorised firm, or to the ICAEW to become a licensed firm- known as an ABS. In the former, all the principals and owners of the firm are individually authorised to carry out probate work. For the latter, not all principals and owners are authorised for probate though at least one individual or corporate entity must be.

Individual accountants regulated by the ICAEW or ACCA wishing to conduct probate services must have completed a relevant course and assessment covering specific areas of probate work and work for a firm who are authorised to undertake probate services.

Post-registration regulation

Post-registration regulation is undertaken either by the independently chaired Probate Committee (for ICAEW members) or by the independently chaired ACCA Regulatory Board (for ACCA members). These bodies are responsible for, inter alia, monitoring compliance with the Probate Regulations and taking regulatory action as required to secure compliance with the Probate Regulations. The ICAEW's Probate Committee aims to conduct an audit within 24 months of a firm registering to provide accountancy services.

Complaints about the provision of probate services can be made to the Legal Ombudsman once the accountancy firm's internal complaints procedure has been completed.

Potential areas of risk

One key area of risk relates to accountants inadvertently providing regulated activities without being authorised to do so. The ICAEW has stated that "The overarching principle applied is that where a member or member firm engages in estate administration services (be it as executor or acting for the executor) and also undertakes probate related activities which are managed as a process and a fee is involved, then the practitioner should be licensed for the reserved service,"

A further area of risk is where there is any dispute over the estate. Accountants are not authorised to undertake contested probate services and so must be alive to the possibility of a dispute arising, which will require the instruction of a solicitor.

Potential developments

In 2019, the Lord Chancellor rejected an application by the ICAEW to become an approved regulator and licensing authority for the remainder of the regulated legal services (save for non-taxation related litigation). The application was rejected, primarily due to concerns that ICAEW's proposed governance arrangements (1) would not be, or would not be seen to be, sufficiently independent of its representative functions; and (2) may lead to a situation where a person providing reserved activities would be regulated by a separate legal services regulator to the entity for whom they worked, which would not be in the public interest. Upon judicial review, the Lord Chancellor's decision was largely upheld by the Court save that the Lord Chancellor was asked to specifically reconsider his decision in relation to the administration of oaths. It therefore appears unlikely that accountants will be able to conduct reserved legal activities other than probate activities in the near future, save perhaps the ability to administer oaths.

As for the ACCA, it is now consulting on withdrawing from legal services regulation at the end of 2020, with CiLEX (the Chartered Institute of Legal Executives) becoming the approved regulator for ACCA firms to offer the reserved service of probate activities. The ACCA has apparently made the strategic decision that it should no longer be an approved regulator of legal services, but should be in partnership with another approved regulator. The consultation closes on 7 October 2020, so we will have to see how the matter develops through the rest of this year.

Author: Mark Chapman.

Further Reading

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