As a general rule, yes, as probate is a ‘reserved’ activity it`s the preserve of Solicitors, similar to litigation or the transfer of land. For ease ‘reserved’ would be better described as ‘regulated’. However, there are so many exceptions to this rule that a more accurate answer would be, no.
For starters executors can apply for probate themselves without using a Solicitor. As they can do this, they can also grant someone a power of attorney to apply on their behalf, who do not need to be Solicitors.
Trust Corporations are another exception. There are certain requirements for an organisation to become a `Trust Corporation` designed to protect individuals, but just because they call themselves a Trust Corporation does not necessarily mean they have complied with all these requirements, so always check. The requirements are, amongst other things, that they have at least £100,000 of fully paid up share capital, and that it states they are a Trust Corporation within their articles of association.
Another major exception is that `probate` has become the generic term for the entire estate administration process. The only part that is actually regulated is applying for the grant itself, which is only a small part in the middle of the entire process. If you think about it, the bit before such as finding the will, establishing the size of the estate, paying any tax, and the bit after collecting in the assets, drawing up the estate accounts, paying the debts and distributing the estate none of this is regulated.
So in essence almost anyone can undertake probate work, and this is the same for will-writing. But whilst this is all very well, what does it mean for you the consumer? Well, on first inspection you might think this added competition can only bring down prices. That might be true, but at what cost. The problem is that certain operators acting under power of attorney and as Trust Corporations are not required to be regulated. So what, you might think, bureaucracy is the last thing I need.
The truth is though with regulation, comes a certain set of standards that a professional must adhere to, on risk of punishment if they do not. But perhaps more importantly than that they are required to be insured. We are all human, and humans make mistakes. It`s almost as inevitable as death and taxes, and Solicitors themselves are not immune from them either. With a regulated Solicitor`s expertise you are taking every precaution possible to ensure that a mistake will not happen, but if it does, you can be reassured that you will be adequately compensated. This cannot be said for every company undertaking probate.
The regulators recognise this too, and there is currently a move towards regulating almost all areas of estate administration and will-writing. My personal view is that this cannot happen soon enough, but this is not looking likely much before 2015, so in the meantime be careful who you use, and my advice is to always ask for written confirmation that they are regulated, by whom, and insured, by how much.
At the same time accountants are making noises to also be regulated to undertake estate administration, another move I personally welcome with their high standards of professionalism.