Case Explained: Probate and POCA: Why ‘Does this make sense?’ matters more than ever – Legal Perspective

Self-confessed AML geek Kayleigh Smale explains the importance of the Proceeds of Crime Act for probate practitioners and shares tips on staying compliant.

Section 328 of the Proceeds of Crime Act is often associated with transactional work, but it has a very real application in probate. It creates an offence where a person enters into, or becomes concerned in, an arrangement knowing or suspecting that it facilitates the acquisition, retention, use or control of criminal property. Legal services are firmly within scope, which means probate practitioners cannot afford to overlook it.

Although the legislation does not define an ‘arrangement’, it is generally understood to mean some form of agreement or understanding between parties that has a real-world impact on property. It does not need to be formal or documented, but there must be a meeting of minds and some degree of intention.

Important distinction

The distinction between ‘entering into’ and ‘becoming concerned in’ an arrangement is particularly important. ‘Entering into’ suggests formal involvement as a party. ‘Becoming concerned in’ is much broader and captures practical involvement. Drafting documents, facilitating transfers or distributing funds can all amount to being concerned in an arrangement if those actions assist in dealing with criminal property.

Now, this is usually the point where I risk upsetting conveyancers slightly. For conveyancing teams, it’s easy. But before all you conveyancers out there start shouting at your screen, what I actually mean is it’s easier. In conveyancing, you need to understand whether the transaction makes sense, but ultimately to get comfortable you obtain evidence of source of funds and understand the source of wealth. If a client tells you the funds are from savings, you are likely to request bank statements and follow the trail until you are satisfied.

A different approach

With probate, it is a bit trickier. The person the funds or assets belonged to is deceased, so you cannot simply go back and ask questions or request further documents. That means your approach needs to change.

So what should you be thinking about?

You should be thinking about the activities of the deceased and whether those activities align with the assets you are now being asked to deal with and distribute.

For example, if you found £500,000 in cash hidden under a bed or around the house of a retired gardener, you would need to ask whether that level of surplus wealth makes sense based on what you know. It may be possible, but it is unlikely, at least through legitimate means, and that should prompt further thought.

Avoid assumptions

It is also important not to rely too heavily on assumptions. There have been real cases of individuals with entirely ordinary backgrounds becoming involved in criminal activity. The so-called ‘gangster granny’ is a well-known example; a retired traffic warden who became involved in drug dealing later in life. While extreme, it serves as a useful reminder that risk cannot be assessed purely on appearance.

The key point is this: if money is dirty, it stays dirty.

The fact that the individual has passed away does not change the nature of the funds. Criminal property does not lose its status on death. It remains criminal property, regardless of who now controls it or how it is passed on.

Undermining objectives

This is where Section 328 becomes particularly relevant in probate. If you suspect that assets within an estate are criminal in origin and you accept those funds or distribute them, you could be committing a money laundering offence. Your involvement in administering the estate may amount to becoming concerned in an arrangement that facilitates the use or transfer of criminal property.

This is not just a theoretical risk. A common question raised in training sessions is why this would matter where the individual is deceased. The answer is straightforward. The legislation exists to prevent the use and movement of criminal property. Allowing those funds to be distributed through an estate would undermine that objective entirely.

In practical terms, probate should not be approached as a traditional source of funds exercise. Instead, it requires a more holistic assessment of the estate as a whole.

Assess the risks

Practitioners should consider what they know about the deceased, including their occupation, lifestyle and financial history, and assess whether the assets identified are consistent with that profile. Where the picture aligns, the level of risk is likely to be lower. Where it does not, further enquiry is required.

Information provided by personal representatives and beneficiaries should also be considered carefully. Does it make sense? Is it consistent? Are there gaps that need to be explored?

Where concerns arise, it is important to pause and consider the appropriate next steps. This may involve seeking further information, escalating internally or considering whether a Suspicious Activity Report (SAR) to the National Crime Agency (NCA) is required. Each matter will turn on its own facts, but proceeding without addressing identified risks carries clear implications.

Clear file notes are essential. Probate matters can be revisited long after completion, and a well-documented rationale will assist in demonstrating that risks were properly considered and managed.

Ultimately, the application of Section 328 in probate is about maintaining a structured and common sense approach. By focusing on whether the overall picture makes sense, and by acting where it does not, you can navigate these risks confidently while remaining compliant with your obligations.

About the author

Kayleigh Smale is a self-confessed AML geek and compliance specialist with over 13 years’ experience in risk and compliance within the UK legal sector. She is the founder of Smale Compliance, where she helps law firms strengthen their AML and regulatory frameworks through practical, engaging and down-to-earth support. Known for making AML accessible, practical, and even fun, Kayleigh turns complex rules into clear, workable processes that fit the realities of law firm life. She is passionate about helping others feel empowered and supported in getting compliance right, bringing energy, clarity, and a touch of humour to everything she does.