As a general rule, solicitors typically handle probate because it’s a ‘reserved’ activity, similar to litigation or land transfers. For clarity, ‘reserved’ simply means ‘regulated’. However, many exceptions exist, making a more accurate answer “no” to the question: “Is probate regulated?” Let’s delve into the nuances of probate regulation.
Executors and Trust Corporations: Key Exceptions to Probate Regulation
Executors can apply for probate themselves without a solicitor. Since they have this ability, they can also grant power of attorney to someone to apply on their behalf. These appointed individuals do not need to be solicitors.
Trust Corporations offer another exception. Specific requirements aim to protect individuals when an organization becomes a ‘Trust Corporation’. However, an organization calling itself a Trust Corporation does not always mean they meet all these requirements. Always check this carefully. For example, they must possess at least £100,000 of fully paid-up share capital. Their articles of association must also explicitly state they are a Trust Corporation. This distinction is vital when considering probate regulation.
Understanding “Probate” vs. Broader Estate Administration
Another major exception arises because ‘probate’ has become a generic term for the entire estate administration process. Actually, only the grant application itself is regulated. This constitutes only a small, middle part of the whole process. Consider the stages before the grant: finding the will, establishing the estate’s size, and paying any tax. The stages after also remain unregulated: collecting assets, drawing up estate accounts, paying debts, and distributing the estate. None of these broader aspects typically fall under strict probate regulation.
The Impact of Unregulated Probate Work
Essentially, almost anyone can undertake probate work, and this also applies to will-writing. While this might seem positive, especially regarding competition and prices, what does it truly mean for you, the consumer? At first glance, you might think added competition only drives down prices. That might be true, but consider the potential cost. The problem is that certain operators, acting under power of attorney and as Trust Corporations, do not require regulation. So what, you might think; bureaucracy is the last thing you need.
The Importance of Regulation and Insurance in Probate
The truth is, regulation brings a specific set of standards. A professional must adhere to these standards, risking punishment if they fail. Perhaps more importantly, regulators require professionals to carry insurance. We all make mistakes; humans are fallible. It’s almost as inevitable as death and taxes, and solicitors are not immune. With a regulated solicitor’s expertise, you take every possible precaution against mistakes. If a mistake does occur, however, you can rest assured that you will receive adequate compensation. This assurance does not extend to every company undertaking probate.
Regulators recognize this issue. They are currently moving towards regulating almost all areas of estate administration and will-writing. Personally, I believe this change cannot happen soon enough. However, it seemed unlikely much before 2015. So, in the meantime, choose carefully who you use. My advice is always to ask for written confirmation that they are regulated, by whom, and for how much they are insured. You can often find details about regulated bodies on the Solicitors Regulation Authority (SRA) website.
At the same time, accountants are also seeking regulation to undertake estate administration. I personally welcome this move, given their high standards of professionalism. This will further strengthen probate regulation. For more information on navigating estates, you might find our article on What to Do if an Heir Hunter Contacts You helpful, or explore our services in Estate Administration.
