When a Probate File Becomes Contentious
A routine estate administration can encounter a dispute without the entire file needing to move to another practice. The first task is to identify the legal obstacle, check immediate risks and decide which work your practice can safely retain. This guide is for non-contentious probate solicitors and accountancy probate teams in England and Wales.
By Justin Patten, Solicitor · England and Wales · Reviewed 25 October 2026
Identify the decision that has become blocked
Start with the act, information or decision preventing progress. Is a caveat stopping the grant? Are co-executors unable to agree a sale? Is a beneficiary asking for missing accounts, challenging an entry or alleging a breach of duty? These situations require different assessments. A long correspondence file does not, by itself, identify the legal problem.
Write a short statement of the obstacle, the relevant grant position and what would allow administration to continue. Separate established facts from allegations and record the evidence still needed. This gives the client and any external adviser a usable starting point.
Check urgency before considering a referral
Check for issued proceedings, formal service, a caveat warning, limitation dates, threatened distribution and immediate risks to assets. A routine file review is not a substitute for urgent advice or a protective step. Do not assume that settlement discussions suspend a deadline.
Record who is responsible for each live deadline while any referral is considered. Sending an enquiry or a bundle does not establish that another practitioner has accepted responsibility. The referring practice remains responsible for work within its existing retainer unless and until a transfer or other change is expressly agreed. Confirm the receiving practitioner’s acceptance of the particular task and any urgent deadline.
Revisit the client and the capacity in which advice is needed
Identify who your practice represents and whether the instructions concern estate administration, an executor’s personal exposure or a beneficiary’s claim. A person who is both executor and beneficiary may have different interests in those capacities. Do not assume that all family members are clients or that everyone’s interests remain aligned.
Solicitors must assess conflicts and confidentiality before acting or sharing information. Where a complaint concerns the practice’s own work, consider the potential own-interest conflict and whether independent advice is required. Accountancy probate teams should apply their own regulator’s requirements and the limits of their authorisation. [1]
Choose the level of additional support
Three routes are worth considering, subject to your authorisation, competence and conflicts position. Your team may retain work it can properly handle. It may commission external advice on one defined issue while continuing appropriate administration work. Or the client may need a litigation practitioner to take responsibility for proceedings, urgent relief or substantial contested evidence.
For ICAEW-authorised probate practices, authorisation covers non-contentious probate only. If the probate matter becomes contentious, the practice must cease that regulated work and arrange an appropriate referral. Not every beneficiary complaint makes the probate application contentious. Assess the position rather than assuming either that all work must stop or that the whole administration can be retained. Other administration or accountancy work may remain possible, depending on authorisation, conflicts and the engagement. [3]
The choice should follow the work required. A discrete external assessment may help where an otherwise manageable file has stalled over legal uncertainty. It is less useful if immediate representation in proceedings is needed. Some disputes affect who can safely act, create conflicts or make continued administration inappropriate; the disputed work cannot always be separated from the wider retainer. Record why the chosen route is proportionate and revisit it as matters develop.
Consider information exchange and settlement
Before commissioning another broad response, ask what it should achieve. A focused exchange of accounts, valuation evidence or the grounds of an objection may narrow the dispute. Negotiation may then address the remaining decision. Mediation can be considered where an independent facilitator could assist, but it does not remove the need to understand the evidence or obtain settlement authority.
The ACTAPS Code offers probate and trust dispute practice guidance on identifying claims, exchanging relevant material and considering ADR. It is not a mandatory CPR pre-action protocol and does not replace applicable rules, directions or deadlines. Its relevance depends on the dispute. [2]
Agree responsibility and costs before sharing the file
An external instruction should identify the client, fee payer, permitted recipients of the advice, included documents and deliverable. Confirm who communicates with the other side, who deals with deadlines and which administration tasks remain with your team. Address confidentiality, privilege and authority for disclosure before sending substantive papers.
Distinguish advice commissioned for the practice itself from outsourced work on its client’s matter and a direct client referral. A fee-payer or contractual client label does not determine all professional duties. When one solicitor firm outsources part of a client matter to another, the originating firm retains responsibility and both firms may owe client-care duties to the underlying client. Obtain the client’s consent to outsourcing or referral and the necessary authority to share confidential information. [4]
Explain the additional fee alongside the likely continuing administration costs. A fixed fee gives certainty for its stated scope; it is not automatically an overall cap. Solicitors must provide appropriate information about likely overall costs and update it as matters progress. Whether fees can properly be borne by the estate needs separate consideration; an external instruction does not itself establish that entitlement. [1]
Plan the return to ordinary administration
Agree what marks completion. The handback should state the issue assessed, advice or action delivered, unresolved questions, relevant deadlines and the person responsible for the next step. If court representation is required, identify the receiving practitioner’s acceptance and the limits of any interim involvement.
A short record of these arrangements helps prevent two advisers duplicating work or each assuming the other is acting. The aim is a clear division of responsibility that lets the administration continue wherever that remains appropriate.
Defined support from Human Law
The Professional File Review costs £1,020 including VAT (£850 + VAT). It covers one principal blockage, up to 60 selected core pages, a 30-minute consultation with the responsible fee-earner and written recommendations. Unlike a preliminary referral discussion, this is a defined advisory instruction resulting in recommendations the practice can use to decide how the administration should proceed.
Human Law’s role is limited to the agreed issue, without taking over the underlying administration. The engagement confirms who is instructing, who may rely on the advice and whether the work is advice to the practice or outsourced advice on its client’s matter. Retaining the administration remains subject to the practice’s authorisation, conflicts position and continuing duties.
A separate direct referral means the executor, administrator or other accepted individual instructs Human Law as its client; confidentiality and information sharing must be agreed accordingly. Further work is separately scoped and priced. See the Professional File Review page for service boundaries and the Professional Referral Guide for arrangements. Send a brief outline and any deadline before substantive documents.
Sources and further reading
[1] SRA Code of Conduct for Solicitors. Paragraphs 3.2, 6.1–6.5 and 8.7; relevant to solicitor duties, not a substitute for an accountant’s own regulatory framework. Read source
[2] ACTAPS Code. Introduction and paragraph 2.18; practice guidance rather than a mandatory probate pre-action protocol. Read source
[3] ICAEW, Ethical considerations for probate practitioners. Non-contentious authorisation and referral when probate becomes contentious. Read source
[4] SRA, Common queries answered. Outsourcing, client-care duties, responsibility and consent. Read source
General guidance for England and Wales, not advice on an individual estate. The appropriate route depends on the documents, circumstances and procedural position. Seek prompt advice where a deadline or asset risk arises.