Jane Mather (Divisional Director – Northern Region) - SWAT UK ICAEW are now a designated approved regulator and licensing authority for probate. Applications for probate accreditation opened this September, giving members access to a potential new revenue stream.

But before you rush to update your website and let your clients know about this new service, there are some key regulations that any firm wishing to apply for a license will want to be aware of.

How do I obtain authorisation to conduct probate work?

Anyone carrying out (or controlling) ‘authorised work’ for an accredited firm must be individually authorised by ICAEW or another approved regulator.
To achieve authorisation under the ICAEW, the individual must attend a course and pass an assessment covering topics specified in the Regulations.
Upon passing the assessment, evidence (by way of a certificate) will then need
to be submitted to ICAEW as part of a request for authorisation.

As the course and assessment will build on the existing skills of a qualified accountant, only members of the accountancy bodies listed below are eligible for accreditation through this route:

• ICAEW
• Institute of Chartered Accountants in Scotland
• Chartered Accountants of Ireland
• Institutes of Chartered Accountants in Australia, New Zealand, South Africa, Zimbabwe and Canada.

ICAEW are currently reviewing the position as regards principals that hold the ACCA, CIOT and other qualifications. However, at the time of writing, principals with such qualifications alone are
not automatically eligible to become authorised individuals for probate
with ICAEW. You can contact ICAEW to get advice regarding your particular circumstances.

The application process

Firms will have to apply to ICAEW, providing information to support their competence and fitness to perform this work and statements and affirmations regarding improving access to justice, conduct, co-operation and working practices.

To be eligible to be a licensed firm, at least one principal within the firm must be either an authorised person or an authorised firm. Where a non-authorised person holds a material interest in a licensed firm, that holding must be notified to ICAEW and will require ICAEW approval.

In addition the firm must satisfy ICAEW that;

• Both the firm and the authorised individuals are fit and proper
• They have appointed - and ICAEW have approved - a Head of Legal Practice (HoLP) [who will be the contact partner] and a Head of Finance and Administration (HoFA)
• They have at least one office in England and Wales from where probate work will be undertaken (Corporates need just have a registered office in England and Wales)
• Any principal that is not a licensed probate firm, a registered auditor, a DPB Licensed firm, a member of ICAEW, ICAS or CAI or another approved regulator holds affiliate status
• Non-authorised persons with a material interest in the firm are approved by ICAEW
• Non-authorised principals, employees and shareholders have been informed of their duty to ensure that they do nothing in contravention of the Regulations
• The firm has procedures in place to prevent un-authorised persons influencing the independence or integrity of probate work
• The firm has PI insurance in place under the ICAEW PII Regulations with a minimum level of indemnity of £500,000 per claim.

Contact partner, authorised individuals, HoLP and HoFA

A licensed firm must appoint a Head of Legal Practice (HoLP) who must be an authorised person and will be the contact partner. In addition they must appoint a Head of Finance and Administration (HoFA).

The contact partner can designate appropriately qualified principals and employees as ‘authorised individuals’. The HoLP is responsible for ensuring that the firm, its principals and employees comply with the Probate Regulations, other than regulation 3.8 (clients’ assets) and that non authorised persons do not do anything to cause a breach of the regulations. The HoFA ensures compliance with the client asset regulations.

It is essential therefore that the HoLP and the HoFA have sufficient seniority within the firm to ensure that others will act on their instructions and are able to report freely to ICAEW should the need arise. Where principals are authorised individuals, it is envisaged that one of them will be the HoLP. The HoFA should be a principal who is an individual and has the necessary qualifications to perform that duty with ‘competence and skill’.