Probate: Not where the risk is in estate administration process
Calls to reform the Legal Services Act 2007 overlook the many unused provisions in it that could facilitate major changes in regulation, the chief executive of the Legal Services Board (LSB) has said.
In the second part of his exclusive first interview since taking the job full-time (read the first part here [1]), Richard Orpin also highlighted its role in ensuring the smooth transfer of anti-money laundering responsibilities from the legal regulators to the Financial Conduct Authority (FCA).
There has been growing support for a review of legal regulation and last November, justice minister Sarah Sackman said [2] the Mazur ruling was further evidence of “a growing case for re-examining the legislative foundations of legal services regulation”.
Mr Orpin acknowledged that “there are things that need to be looked at and changed”.
However, “the great thing” about the Legal Services Act was that “it built in loads of flexibility for government to change things as the market changes and they haven’t been used. They’ve not been exhausted by any means”.
The Act was “permissive enabling legislation” that allowed the government, on the recommendation of the LSB, to increase or reduce the scope of the reserved legal activities, for example, or add new regulators and give existing regulator different powers.
Changing the list of reserved activities is arguably the most fundamental change the LSB could make under the Act and earlier this year Mr Orpin said [3] the case for a review of the list “is growing, and we intend to make it”.
The LSB is also examining the alternative of establishing voluntary standards in unregulated parts of the sector.
Mr Orpin said: “So that for me is a flexible piece of legislation that allows you to do quite a lot before you actually have to say, ‘We need to go back to a blank sheet to paper’.”
It depends how radical you want to be, of course. Professor Stephen Mayson’s idea of switching from regulation by professional title to regulation by activity could not be done under the Act, Mr Orpin accepted.
The starting point is gathering evidence on how consumers are using legal services. He explained: “What are their expectations of the protections that exist? How is AI changing people’s expectations and interaction with the market?”
The LSB has just finished research on people’s interaction with AI-enabled, consumer-facing legal tools. “It tells us that people still expect to see a human in the loop. They still expect to have to give consent for an AI tool to act on their behalf. They are not naive about technology,” Mr Orpin said.
“So there’s still a very strong and clear sense from consumers, even when using AI, that there should be human accountability at the heart of it, but we don’t have that right now for tools that are outside of the regulated sector.”
If, at the end of this process, there is a case for a different way of doing things, the Act provides options.
“Maybe it’s voluntary standards, maybe it’s a change to the scope of what’s regulated. There are different outcomes even within that – you could say the scope of what’s regulated needs to be extended, but the burden of regulation that applies doesn’t need to be as high as it is now in some areas. There’s quite a lot that you could do to find a new approach.”
Probate is a good example of the oddities of the reserved legal activities. It is just the grant of probate/letters of administration that has to be done by a regulated person. Not the will-writing (in 2013, the then Lord Chancellor, Chris Grayling, rejected an LSB recommendation [4] to add it to the list) or, surely more pertinently, estate administration – where all the money is handled.
Probate is “not really where the risk is”, Mr Orpin agreed. He pointed to the Competition and Markets Authority’s 2024 review [5] of will-writing, online divorce and pre-paid probate.
“It found evidence of poor practice. It’s taken enforcement action in some cases through consumer law and put in place guidance for businesses and consumers, but is that enough? Should we have greater oversight through legal services regulators of those activities?”
Many of the Solicitors Regulation Authority’s (SRA) powers still derive from the Solicitors Act 1974. In its recent report on overhauling part III of the Act, concerning solicitors’ costs, the Civil Justice Council working party noted in its concluding remarks that “many of the reservations we have expressed in relation to part III – in particular as to its archaic nature and complexity – might equally well be made in relation to other parts of the Solicitors Act 1974”.
It went on: “Like part III, these other parts have been amended extensively over the years, and their structure and expression therefore lack the coherence of freshly drafted, modern legislation.
“In places, their provisions overlap with those of the [Legal Services Act], adding to the unnecessary complexity of the regulatory landscape. All of this suggests that the other parts of the 1974 Act are similarly ripe for review.”
While that exercise was beyond the working party’s terms of reference, “it is, nonetheless, an exercise we would encourage”.
The broader question this raises is whether the SRA has the tools it needs to do its job in 2026.
An ongoing example of this is the SRA’s fining powers, which for traditional firms under the 1974 Act are limited to £25,000 – only increased from £2,000 in 2022 – but for alternative business structures under the Legal Services Act are £250m for a firm and £50m for individuals within them.
The SRA has long been calling to bring the former in line with the latter, although it always has the option to take cases to the Solicitors Disciplinary Tribunal, which has unlimited fining powers.
Mr Orpin said the SRA currently needed to focus on the various enforcement actions the LSB has imposed on it following the Axiom Ince and SSB Law failures. Only then would it be the right time to look at whether it has the tools it needs – and even then only after examining how effectively it uses the tools it has.
He went on: “There are some things that we’ve said it needs but you don’t necessarily need legislation to deal with. For example, we’ve said in the directions [issued following Axiom Ince] that it needs to have a more effective pre-intervention procedure. It’s either do nothing or full intervention.
“Actually, you need to be more nimble than that as a regulator. When you’re being proactive and looking for areas of risk, then what’s the step you can take short of intervention that might protect the client interest?”
The LSB is developing its next three-year plan during 2026. “This is exactly the kind of thing that I would see as being potentially in it. We’ll be looking at how the market has changed, what needs to happen as a result and who’s best to deliver it.
“If the LSB is best placed to deliver something like a change in the tools or powers of a regulator, then I would expect that to be in the plan.”
A more immediate regulatory change the LSB has to tackle is the shift in oversight of lawyers’ anti-money laundering activities from the legal regulators to the FCA.
The LSB was “playing a convening role with the legal services regulators we oversee to ensure that there is a smooth transition”, Mr Orpin said.
“There are some clear risks that you’d want to mitigate. One is that we see an exodus of talent from the legal services regulators around AML compliance while the process for transitioning is in place. We need to make sure that regulators are making sure they retain the expertise they need to discharge their duties while they still have them.
“Another is that we don’t end up in a system where there’s duplication between what legal services regulation and financial services regulation is doing.”