Having to deal with a loved one’s property and possessions when they die is an unpleasant and daunting prospect. This is often’ made much worse because you are dealing with such matters at an extremely difficult and emotional time, We believe that we have the appropriate experience to ensure that families or those dealing with these tasks can turn to us with confidence. Whatever the circumstances of the deceased or their estate, we can ensure that matters are handled effectively and with sensitivity and understanding. The following information will explain just some of the matters and processes involved in dealing with an estate.
The first task will involve registering the death and making arrangements for the funeral. This will usually fall to the next of kin or the Personal Representatives to organise. The Registrar of Births and Deaths for the sub-district in which the death occurred must register the death. The address can be found in the telephone book under Registration of Births, Deaths and Marriages.
Who are the Personal Representatives?
The Personal Representatives (PRs) are the persons who deal with everything owned by the deceased. The PRs will more commonly be known as the Executors if they are named in the Will, or the Administrators if there are no Executors named or there is no Will.
Checking for a Will
It will be necessary to find out if the deceased person left a Will. The Will should set out who the Executors are as well as including any details of what the deceased wanted to happen to his or her property, money, and possessions. On occasion, the Will may express the deceased’s wishes regarding funeral arrangements.
There will usually be some indication of whether the deceased left a Will and where the original Is kept. The Will could be in safe custody with the deceased’s solicitor or the deceased’s bank. Occasionally it may be in the possession of the deceased’s family or even stored at home.
Identifying the Assets
The PRs will need to find out what assets the deceased owned, this will perhaps include bank and/or building society accounts, property, insurances and other investments. Depending on the type and the value of the assets, the PRs may then have to apply for a Grant of Representation.
Grants of Representation
There are different types of Grants of Representation. The most common are:
• Grant of Probate
• Grant of Letters of Administration
Grant of Probate
Probate is the process of officially proving the validity of the deceased’s Will. The original Will is lodged with the Probate Registry where it Is retained and archived. A legal document known as a Grant of Probate Is then issued to the Executors named in the Will.
Grant of Letters of Administration
If there Is no valid Will the deceased is said to have died ‘intestate’. The Administrators (usually the deceased’s next of kin) are entitled to apply for a Grant. The law of succession decides who the next of kin is and this follows a strict order of priority.
When is a Grant of Representation required?
It may not always be necessary to obtain a Grant. For example, if there are no other assets, a grant will not be needed where the deceased’s home is held in joint names and is passing by survivorship to the other joint owner.
Similarly, where a joint bank account or building society account is held, the production of a death certificate may be sufficient for the monies to be transferred to the joint holder. Sometimes a bank or other financial institution may release monies without a Grant being produced but this will only apply if the amount held by the deceased was small (commonly £5000 or less). The application should be made direct to the bank or institution concerned to see if they will release funds without a Grant. This power is discretionary and the authority concerned is not obliged to exercise it.
In larger estates where Inheritance Tax is payable a Grant of Representation cannot be issued until the tax has been paid. The amount of Inheritance Tax will depend upon the value of the deceased’s estate at the date of death. The HM Revenue & Customs Capital Taxes Office deals with the tax.
Collecting and Distributing the Estate
The Personal Representatives will need to produce the Grant of Representation to the organisations holding money in the deceased’s name. This includes banks, building societies, and insurance companies. This will enable the organisations to release the money and the Personal Representatives will be responsible for paying any funeral expenses and debts and taxes of the deceased.
Once this task has been completed the Personal Representatives will distribute anything leftover in
accordance with the terms of the Will or if there is no Will to the persons entitled at Law on the deceased’s
How can we help?
Dealing with even the most straightforward and uncomplicated estate can be very time consuming and there are set procedures to follow. Our probate team has the necessary experience and understanding to ensure that the administration of the estate will be dealt with in an efficient, sensitive and professional manner.
A sample of some of the comments our clients have made:
” …I would like to say how grateful we are to you for bringing the matters of Dads estate to this conclusion, all of which have been carried out most sufficiently and satisfactorily We would thank you also for dealing with our requests and handling such personal matters with sympathetic understanding, qualities much appreciated especially at the beginning of this process.”
“I would like to thank you for the efficient way that you and your assistant have handled the administration of my Fathers estate.”
“I would like to thank you and your associates for the work you have done on my behalf. It would otherwise have been an impossible task. This has been an arduous few months, particularly for my parents, and the whole family is grateful for your efficient completion of the matter.”
“The family would like to thank you…..for the friendly and efficient way in which you have dealt with my mother’s Will. We shall have no hesitation in coming to Clayton Matt again, and in mentioning your name to friends.”
Clare de Ritter – Solicitor
What is a Power of Attorney?
A Power of Attorney is a document created by a Deed in which one person (‘the Donor) gives another person (‘the Attorney’) authority to look after their affairs. More than one attorney can be appointed. All Powers of Attorney is in effect lifetime mandates and cease automatically on the death of the Donor.
There are basically three types of Power of AttorneyJhese are:
Ordinary or General Power of Attorney
Enduring Power of Attorney
Lasting Power of Attorney
Ordinary or General Power of Attorney
An Ordinary Power of Attorney is a simple document in which the Donor appoints an Attorney to deal generally with their financial affairs or specifically to deal with a certain matter for example, the sale of a property.
Although a cheaper option than other types of Power of Attorney, the Ordinary or General Power of Attorney has its limitations as it will be automatically revoked if the Donor becomes mentally incapable. It is therefore not suitable for long-term management or for many elderly people as the document may be revoked at just the time it is most needed.
Enduring Power of Attorney
Enduring Powers of Attorney (EPA) can no longer be created. They were special forms created by the Enduring Powers of Attorney Act 1985. These documents had significant advantages over the Ordinary Power of Attorney in that they were not canceled when the Donor became mentally incapable.
EPAs made before 1st October 2007 remain in force and are still effective for the purpose for which they were created. If the Donor of an existing EPA loses mental capacity then the Attorney has a legal duty to register the document with the Court of Protection. We can advise and assist in bringing existing EPAs into use and on the registration process when needed.
EPAs relate only to the financial affairs of the Donor and do not extend to authority relating to health or welfare matters.
Lasting Powers of Attorney
The Lasting Power of Attorney (LPA) was introduced on the 1st October 2007 and has replaced the EPA to make plans for the future when you may lack the capacity to make decisions for yourself. An LPA allows the Donor to choose an Attorney or Attorneys that they trust to make decisions on their behalf.
There are two types of LPA which can be created separately:
The property and affairs LPA
The health & welfare LPA
Property and Affairs LPA
In many ways similar to an EPA, but due to the length and greater complexity they are unfortunately more expensive to prepare. The property and affairs LPA allow the Donor to appoint an Attorney to manage their finances and property. An Attorney would not be able to make decisions about
The certificate confirms that the Donor understands the purpose of the LPA and the scope of the authority under it, that no fraud or undue Influence is being used to induce the Donor to create the LPA and there is nothing else that prevents the LPA being created. The certificate provider must be chosen by the Donor and be acting independently both of the Donor and of the proposed Attorney. The certificate provider must be a person who falls into one of the following categories: Knowledge certification This is someone who has known the Donor personally for at least two years; or Skills certification This is someone who considers that they have the relevant professional skills and expertise to certify the LPA.
For example: -A registered healthcare professional (includes GP); -A barrister, solicitor, or an advocate; -A registered social worker; or -An independent mental capacity advocate. We would usually recommend a skills certification as people in this category are usually more used to assessing mental capacity. The office of the Public Guardian may also need to contact the certificate provider to verify the information they provide. Taking on the role of the certificate provider is very important as it provides one of the main safeguards in the LPA process. Registration; Both the property and affairs LPA and the LPA, if one has been created, must be registered with the Office of the Public Guardian before they can be used. The Attorney cannot act until the registration process has been completed. There is a Court fee payable for the registration. More information can be found by following the link to the Office of
If you would like more detailed advice or wish to discuss the most appropriate actions for your particular circumstances then contact:
Clare de Ritter
The inheritance tax threshold for each individual is £325,000.
The ‘transferable nil-rate band’ benefits married couples, civil partners, widows, and widowers but not single people or cohabiting couples.
The IHT spouse exemption means that there Is no IHT to pay on assets passing between married couples or civil partners. Before the changes, this meant that If one spouse or civil partner died and left everything to the survivor then no IHT would be payable on the first death. However, as a result of this, the deceased’s nil-rate band was unused and therefore lost.
To overcome these difficulties, many people followed best practice advice and completed Wills whereby, on the first death, assets of a value equal to the nil-rate band were left directly to the children or more commonly to a discretionary trust. This ensured the nil-rate band was used fully and not wasted.
Following the introduction of the transferable “nil-rate band,” it is now possible for married couples or civil partners to use both nil-rate bands on the death of the survivor. This is achieved by a transfer of any part of the nil-rate band allowance which was not used on the first death. It does not matter when the first death occurred as the announcement had retrospective effect, so long as the second death happens on or after 9th October 2007.
In many cases, the availability of the transferable nil-rate band means it will no longer be necessary to write complex arrangements into Wills involving discretionary trusts, IOU schemes, or equitable charges. The
provisions will be a welcome simplification of the IHT regime for clients.
This change will effectively provide a £650,000* nil-rate band to all couples (married or civil partners) rather than only those who have executed some IHT planning steps.
*based on the nil-rate band of £325,000 for tax year 2013.2014
Is it necessary to change existing Wills?
Many clients will already have a nil-rate band or discretionary trust arrangements written Into their Wills, There is no need for clients to change their Wills simply to exclude such arrangements. The existing trust should include the power to distribute capital at any time. The trustees could use this power on the first death to appoint the trust assets to the surviving spouse. Provided this is done within two years of the first death, both nil-rate bands will be available to use on the death of the survivor. Clients may choose to leave their Wills unchanged until they next review them but if this has not been done for some years, ‘TI!’ might be a good time to do so.
There will still be instances in which a nil-rate band discretionary trust is useful but it Is now unlikely to be for IHT reasons.
Instead, couples may prefer to return to the much simpler ‘all to each other and then to the children in equal shares’ provision in their Wills.
If you would like more detailed advice or wish to discuss the most appropriate actions for your particular
circumstances then contact a member of our Probate team. More Information can be found by following the link to the HMRC website. http://www.hmrc.gov.uk/
A breakdown in family relationships is one of the most worrying and traumatic of emotional circumstances. Our aim is to offer uncomplicated, confidential advice support, and assistance. Relationship breakdown, divorce, and separation
• Divorce Petitions
• Civil Partnership breakdown
• Separation procedures
• Disputes between cohabitees, including same-sex couples
• Ancillary Relief – splitting the property, cash assets and pensions
Children Act proceedings
• Residence and contact
• Parental rights, responsibility and guardianship issues
• Prenuptial agreements
• Cohabitation agreements
Claims against estates
• Inheritance claims
• Disputed Wills
Divorce is a commonplace occurrence these days and few people in such circumstances have much idea at the outset of how the process operates. Each case is unique and therefore needs individual appraisal, but what follows is a brief and simplified guide to explain some of the procedures involved in an uncontested divorce.
Preparation of the divorce petition
Divorce proceedings can be commenced only if the parties have been married for more than one year. The party to the marriage who starts the proceedings is referred to as the petitioner whilst the other party is called the respondent.
The petition contains information about the names, addresses and occupations of the parties, the names and dates of birth of any children of the parties, and the details of the marriage. Most importantly the petition will establish the reason for marriage of civil partnership breakdown.
The only ground for divorce is that the marriage has irretrievably broken down and this must be demonstrated by one of five facts:
- That the respondent has committed adultery and the petitioner finds it intolerable to continue to live with him/her.
- That the respondent has behaved in such a way that it would be unreasonable to expect the petitioner to live with him/her.
- That the respondent has deserted the petitioner for a continuous period of two years proceeding the date of presentation of the petition.
- That the parties to the marriage have lived apart for a continuous period of two years proceeding the date of presentation of the petition and the respondent agrees to the divorce.
- That the respondent has behaved in such a way that it would be unreasonable to expect the petitioner to live with him/her.
That the parties to the marriage have lived apart for a continuous period of five years or more proceeding the date of presentation of the petition whether or not agrees to the divorce,
Issue of the proceedings
The petition is sent to the court with the marriage certificate and a statement detailing arrangements for any children and the appropriate court fee (currently £40). A certificate is also used to indicate whether or not the possibility of reconciliation has been discussed with the parties. The court will allocate a case number and arrange for the petition to be served on the respondent. Once the petition has been successfully served and acknowledged and provided the respondent does not intend to defend the petition, the matter can progress to the next stage in the proceedings.
Application for directions for trial (special procedure directions)
An application is lodged with the court accompanied by a statement by the petitioner. The statement confirms the contents of the divorce petition as being true. A District Judge considers the contents of the petition statement and if satisfied will give notice of the date when the decree nisi will be granted. He will also consider the arrangements for any children.
On the date fixed, a District Judge will read out the decree nisi in court. The petitioner and respondent do not usually need to attend court. The court sends a copy of the decree nisi to both parties but this does not dissolve the marriage.
Six weeks and one day after the decree nisi, the petitioner can apply to the court for the decree nisi to be made Absolute. The application is sent to the court where a District Judge considers it and if satisfied that it meets the necessary criteria will issue the decree absolute certificate. If the petitioner does not make the application, the respondent can apply but only after three months have elapsed from the earliest date when the petitioner has applied.
It is helpful if arrangements concerning any children and the split of the financial assets are agreed between the parties without having to go to court to resolve these matters. However, It is important to have good legal advice even if these decisions are taken amicably.
The divorce process is likely to take approximately six months from the issue of the divorce petition. It will, however, depend on the nature of the case and will take longer if there are disagreements over children or money that cannot be resolved without the intervention of the court.
In recent years there have been significant changes in employment law governing the relationship between employer and employee. The law is continuing to develop and accordingly, it is essential that specialised legal advice is obtained.
Employees generally can now only be required to work for a maximum number of hours per week, are entitled to a minimum level of pay and period of holiday, and parental leave is now available to both the mother and father. Such changes, coupled with the recent increase in the compensatory award for unfair dismissal means that no matter what size of the business, from an employer’s point of view it is vital that all steps be taken to minimise the risk of potential and actual claims.
We are able to assist both the employer and the employee in seeking to enforce or clarify their rights. In
particular we are able to advise, assist and if necessary offer representation in relation to the following:
- Unfair and wrongful dismissal claims
- Breach of employment contract
- Redundancy and related matters
- Working hours and holiday entitlement
- Parental leave and time off for dependants
- Transfer of a business; the effect upon employees and obligations on the part of the employers
- Discrimination due to race, age, disability, religion or sexual orientation
- Equal pay and minimum wage claims
- Sexual harassment and victimisation in the workplace
Furthermore, in order that both the employer and employee understand their obligations and to reduce the
likelihood of disputes arising at a later date, it is essential that employment contracts, policy documents and
company handbooks are clear, unambiguous, and reflect all changes in the law. In addition to the above, we are
able to offer advice and assistance in connection with the following:
• Drafting of new contracts of employment
• Amendment/variation of existing contracts
• Preparation of Directors service agreements
The information and opinions contained herein are for general guidance only and not intended to constitute
legal or professional advice. The information should not be relied upon or treated as a substitute for specific
advice relevant to individual circumstances. Clayton Mott shall have no responsibility for any loss that may
arise out of reliance on any material contained herein.
Buying or selling a business is an exciting although stressful time. Legal advice from one of our experts can guide you through the process and deal with the transaction quickly and efficiently, giving you proactive advice along the way. You will be pre-warned of any potential liability or pitfalls that may arise. We have expertise in the acquisition and sale of many different types of business and provide a well-rounded service with the legal jargon cut out.
Here is a sample of the wide range of services we can offer in this area:
• Determine the type of sale (e.g. share, asset, transfer of going concern)
• Assisting with the negotiation of and drafting the Heads of Terms
• Drafting and negotiating sale agreements and negotiation of sale terms to ensure adequate protection
is built In
• Drafting confidentiality terms or agreements
• Raising Responding to due diligence inquiries
• Dealing with employment issues relating to the purchase or sale of the business
• Advising on intellectual property rights (i.e. patents, trademarks etc.)
• Advice on retention accounts
We will add value to your commercial purchase by identifying and eradicating any hidden future liabilities on the purchase of a business. If you are selling, we will ensure that you are clear about the guarantees you are required to supply to ensure that you are getting the best deal you can and understand the implications of the sale.
The information and opinions contained herein are for general guidance only and not intended to constitute legal or professional advice. The information should not be relied upon or treated as a substitute for specific advice relevant to Individual circumstances. Clayton Matt shall have no responsibility for any loss that may arise out of reliance on any material contained herein.
Did you know that 7 out of 10 people in this country never make a Will? Some don’t like to think about it whilst others don’t even bother because they assume that everything they own will automatically pass to their nearest and dearest.
Why do I need a Will?
Making a Will is the only way to ensure that your wishes are carried out after your death and that the people you care about are provided for.
Your Will enables you to:
• Choose who will be responsible for winding up your affairs.
• Appoint guardians for your children
• Plan to reduce the burden of Inheritance Tax
What happens without a Will?
Without a Will the Law decides who gets what from your estate and your wishes will count for nothing. Without a Will, all sorts of family disputes can arise. Families today are often complicated involving divorce or separation, second marriages, couples living together, stepchildren, and adopted children.
No Will could mean:
- Your spouse may not inherit the whole of your estate
- Your spouse or partner may have to sell the family home because the Law says other relations are entitled to a share.
- If you are not married, your partner’s entitlement may be very limited.
- The rules set out by the Law may not favour relatives you would not wish to benefit.
- With no immediate family, the Government can inherit all you have.
- A larger Inheritance Tax bill for your family.
These are just some of the problems that can arise if you do not make a Will.
Should I update my Will?
Quite simply the answer is ‘yes’. Keeping your Will up to date is almost as important as writing one in the first
place. Everyone’s circumstances change over time and we recommend that you review your Will at least every
five years, or more frequently if there is a major change in your circumstances.
Homemade Wills or even an out of date Will can create more problems then they solve. None of this need
happen If you make a proper Will. Contact us for an appointment to discuss your requirements. You should allow 30 to 45 minutes for the initial interview, which allows us to take full instructions.
Before making a Will you may like to consider:
• Estimating the approximate value of your estate by calculating what your assets and/or savings are
• Choosing your Executors – these wiil be the people responsible for carrying out the terms of your Will.
They can be relatives, friends, or professional people. Executors can and often are also beneficiaries
under the Will.
• Making a list of any gifts of money or any particular possessions you may wish to leave to particular
• Who will receive the rest of your estate and who will inherit if these beneficiaries die before you?
Clare de Ritter
Free Will Fortnight
For the first two weeks in October, we are doing free Wills in association with Nottinghamshire Hospice.
For more information go to: http://www.nottshospice.org/get-involved/make-your-will-fortnight/
Moving house is a very exciting and important event in your life but also one of the most stressful things you can do. This is particularly true If you are trying to buy and sell the property at the same time. We recognise that purchasing a property is likely to be one of the biggest financial commitments you make, there Is much to plan and organise and you will want the process to run smoothly. There are many opportunities for things to go wrong and you will not want to leave this to chance. We have a specialist residential conveyancing team waiting to guide you through the necessary formalities. We are proud to have helped thousands of first-time buyers and existing property owners to buy and sell their homes with a minimum of fuss and delay. To speed up the process we are able to carry out many of the searches and investigations electronically. Our clients value our experience, local knowledge, and competitive prices. You will find us friendly, approachable and good at what we do.
We believe in individual attention to each case but what follows is a brief and simplified guide to explain some of the procedures involved and hopefully, answer some of your questions.
Conveyancing – what does it mean?
Conveyancing is the process of legally transferring ownership or rights in property from one person to another. Your solicitor’s job is to ensure you get what you pay for and that you will not discover problems about
the property you are buying or selling until it is too late.
Energy Performance Certificate and report prepared by an independent energy assessor.
This rates the overall energy efficiency of the home and contains advice on culling carbon emissions and
provides buyers with a clear idea of what their fuel bills are likely to be.
The seller is responsible for the cost of the EPC of which is to give prospective buyers better
information about the property they are thinking of buying.
What is exchange of contracts?
This describes the stage where both the seller (‘Vendor) and the buyer (‘Purchaser) have signed their own sale agreement (‘Contract’) and these are literally exchanged between the various solicitors who may be involved. It is a significant and very important stage as the agreement then becomes totally legally binding and neither party can back out after this without suffering financial loss. Prior to this stage, your solicitor will make all sorts of inquiries about the property. For example, to check exactly what is and is not included in the sale or purchase price and that the seller actually owns the property in the first place.
What are local searches?
Your solicitor will carry out a number of investigations with the local authority. In practice, they are trying to find
out if there are any matters which you ought to know about that might affect your decision to proceed or the price you will pay. For example, if the solicitor discovered that a new motorway route was planned near the property, or a new regional airport was to be built nearby you might want to think again!
When will a deposit have to be paid?
An agreed percentage of the purchase price is payable when contracts are exchanged unless otherwise agreed this is 10%. If you are selling as well as buying, your solicitor will attempt to exchange on both transactions at the same time. This is so that the deposit taken from your buyer can be put towards the deposit on the property you are buying. Coordinating the two transactions is one of the many jobs your solicitor will carry out for you.
When do I get the keys?
You will get the keys when the ownership of the property has passed to you on the date stated in the contract. This will take place when you have paid the full purchase price. This is known as completion.
How long will it all take?
It is impossible to be specific over this, as no two transactions are the same. On average it is likely to take between four to six weeks. Solicitors like Clayton Mott who are sensitive to Clients’ needs will try to meet any deadlines that are important to you providing it does not compromise the quality of the work and your long term interests.
What are disbursements?
It is very important that you understand this particular issue. Disbursements are those additional expenses that you will have to budget for as part of your conveyancing (such as search fees). They are not connected to your legal fees at all. For example, we will charge you a fee for the legal work we carry out. On top of this, we have to ask you to pay for those expenses payable to others such as the local authority and the land registry over which we have no control. These disbursements are the same regardless of which legal firm you use.
Offering a professional service we recognise that a large proportion of our work comes from recommendations and satisfied clients. Our aim is to give the maximum level of added value service at a competitive rate. We believe that in providing a service that is approachable, efficient, fast and effective, you will not only want to use us again but will recommend us to your family and friends.
The Next Step
For further information or an immediate fixed quote contact the residential conveyancing team at our office without obligation. The information and opinions contained herein are for general guidance only and not intended to constitute legal or professional advice. The information should not be relied upon or treated as a substitute for specific advice relevant to individual circumstances. Clay/on Mott shall have no responsibility for any loss that may arise out of reliance on any material contained herein.