Who are Executors and what do they do?
By Stephanie Greaves
A key decision when making a Will is who you want to deal with your estate in the event of your death. These people will be your Executors. Executors are usually family members, close friends or professionals, such as Solicitors.
When choosing who to appoint as your Executor, you should choose someone who is organised and would be able to deal with the responsibility the role brings.
We would usually advise that you have at least two Executors (maximum of four) so that you have a substitute/replacement in the event one of your Executors is unable or unwilling to act. For example they may die before you or they may lose mental capacity.
It is a good idea to discuss this with the person(s) before appointing them, just in case they do not want to act then you can think about someone else. You can also let them know where key information and documents are located.
The Executors are usually tasked with the following jobs (although this is not an exhaustive list):-
- Registering your death
- Arranging your funeral
- Notifying the various organisations of your death
- Completing the paperwork and application to apply for a Grant to deal with your estate, including swearing an Oath and obtaining the value of all of your assets and liabilities as at the date of your death
- Placing Statutory Notices (which is an advertisement to any creditors in the local paper and in the London Gazette)
- Collecting in your assets which includes closing your bank and building society accounts and selling and transferring any property, investments and holdings
- Paying any tax due
- Paying all of your bills, debts and any expenses
- And finally distributing your estate in accordance with your Will.
If you have been appointed as an Executor in a Will and you do not want to act, you can renounce (which means that you will not have any involvement in the estate). You can also have power reserved (which means that you do not wish to act at the immediate time but do not wish to exclude yourself from ever acting in the future).
If you are thinking about preparing a Will please speak to us and we will be more than happy to guide you through the process, including discussing the appointment of your Executors.
If you are an Executor and require any assistance or you do not wish to act, please do not hesitate to contact us for advice.October 2018
Cybercrime and Conveyancing
By Tamara Wynn-Samra
What is Cybercrime?
You might have seen a number of articles in the news recently about people falling victim to cybercrime. Cybercrime is a type of fraud. Modern technology, including the use of emails means that cybercrime is on the increase and as a house purchase/sale often involves large sums of money, conveyancing transactions are very attractive to criminals.
As it becomes more common for bank account details and payment instructions to be given via email, criminals are attempting to infiltrate emails between clients and their legal advisers in order to divert funds and obtain either the proceeds of a sale or the funds for a purchase.
The criminals are known for producing extremely convincing emails which appear to be from one of the parties involved and are asking for payment to be made into a different bank account.
Who are the victims of cybercrime?
1. You: the client who loses their money
2. The solicitors who are questioned regarding their security measures
3. The bank who may share liability and reimburse the client.
4. The professional indemnity insurers who can be forced to pay out.
How would Robert Barber Solicitors try to minimise the risk of cybercrime to you as a client?
We advise you from the outset of the risks of cybercrime and hope that you are mindful of such activities. We require you (and every client) to provide us with sufficient proof of identity. We trace the source of deposit funds being given. We are cautious of giving any sensitive information electronically. We use Lawyer Checker to verify the account details of the solicitors acting on the other side of the transaction before sending any payment. We would ask you to call us to check our account details before sending any payment. We would call to confirm your bank details before sending any payment. We have clear procedures and policies in place for dealing with the risk of fraud. All of our staff are aware of the risks and are trained on the firm’s safeguards and policies to help protect you. We never change our bank details during the course of a transaction with you.
Things to look out for / Warning signs as a client
You are most at risk of fraud if the property is one or more of the following:
Vacant Rented out Free of mortgage Not yet registered with the Land Registry
Please call us immediately if you receive any of the following:
An email which looks like it is from us but there is a slight change in the email address, i.e. an extra digit or letter. Communication from us which looks different to what you have previously received i.e. the logo, the language, the header or the footer is different. Communication from us to say that our bank details have changed from what has previously been given.
6th September 2018
Concerns Regarding Probate Costs
By Grant Shaw
Many people were concerned to read at the weekend that some of the major banks in the UK who had offered clients ‘free wills’ would later make a charge of up to 2.5% of their total estate plus a £1500 fee if they appointed the bank to be their executor. That means that although there was no charge at the time of making the will, if you left £250,000 your family would be paying the bank £7750 for closing down your affairs.
It’s not very often that things are truly ‘free’, even when they are advertised that way. At Robert Barber we always make sure that we give you either a fixed price or where this is not possible that you know the basis for our charging and an estimate of the time we expect it will take BEFORE you formally instruct us to act for you. We usually charge a set amount per hour’s work or - even if you appoint us as your executors – the highest percentage we will charge is 1.75% of your gross estate (June 2018 prices) in total, plus fees to other people such as the Probate Registry and the tax authorities. Very often we can do the job for a fixed price so that your executors know what to expect. No nasty surprises.
If you are concerned that you might have a will which enables a bank (or any other body) to charge your estate in this way, we’d be pleased to have a chat and look at your paperwork to put your mind at rest. It’s easy to change your will, and many people don’t need a bank – or indeed a solicitor – to be their executor.
See this link to the Daily Mail online for the original article :
20th June 2018
Being a Landlord isn't Always Easy
By Carl Maw
A quick internet search will show that the number of Residential Landlords have declined over the recent years. There is a number of reasons for this including changes to the legislation making being a Landlord not only harder but potentially less profitable.
I act for a number of Landlord’s and am often instructed when they require their Tenant removing from their property. This can be for a number of reasons including, failure to pay the rent, Antisocial Behaviour or just that the Landlord wishes to sell the property and believes the property is more marketable without a sitting Tenant. No matter what the reason, it is important that the Tenant is served with the correct notice. Generally either a S.8 Notice is served (usually when there are more than 2 months’ rent arrears, or antisocial behaviour or other breach of the tenancy) or a S.21 Notice (when the fixed term tenancy has expired).
The time limits before you can start Possession Proceedings after serving a S.8 or S.21 notice vary depending on the type of notice and reason (for example a S.8 Notice based on 2 months’ rent arrears is 14 days where as a S.21 Notice is 2 months). It is also important to remember that if these notices are posted then they are often not “deemed served” until 2 business days after they were posted, so it is vital to take this into account when completing the notice.
Much has changed with regards to
S.21 Notices over the last few years and (assuming that the last tenancy
started after 1st October 2015) a valid S.21 notice can only be
given if the following has been complied with
i. If a deposit/bond was taken it was secured in the relevant government scheme within the relevant time period, and the tenant was provided with the relevant information.
ii. The Tenant was provided with a copy of the EPC at the start of the tenancy.
iii. The Tenant was provided with the rental checklist at the start of the tenancy.
iv. The Tenant has been provided with an updated gas safety certificate (where relevant).
v. The Landlord is not trying to evict the tenant
as they have asked for repairs to be done to the property ‘retaliatory eviction.’
If any of the above has not been complied with then it is important that you seek legal advice before serving a S.21 Notice as there still might be ways in which we can help resolve the issues that you face.
At the present time the Courts are under enormous pressure and as such it is not uncommon for Landlords to wait months for a hearing date. If the notice served is found to be invalid then in all likelihood the claim will be struck out which not only means that the Landlord loses any court fee they have paid to start the proceedings (currently £355), but they could also be ordered to pay the Tenant’s legal costs in defending the claim, and (assuming the Landlord still wishes to obtain possession of the property) will have to serve a new notice and wait for its expiry which as outlined above could be a further 2 months (not including the days for service).
Furthermore if for example the Landlord has failed to secure any bond taken from the Tenant in one of the government schemes correctly, this can give rise to the Tenant being able to claim up to 3 times the deposit amount from the Landlord. Therefore in this situation not only would the Landlord not obtain possession in the first instance, but they could be left owing their Tenant money!
The Court will expect a Landlord to be professional and act within the law and as such any breaches pose a serious risk to the Landlord that any claim for possession will be unsuccessful. It is therefore vitally important that if you are not 100% sure of the law or that you have concerns that you may have not followed the correct procedure then you seek legal advice before acting .
This article cannot be and is not more than a 'snapshot' of the law. At Robert Barbers, we have experienced solicitors who will advise and guide you so the best outcome can achieved for you.
6th June 2018
How Are The Assets Divided When a Married Couple or Civil Partnership Split?
By Helen Prins
When a married couple or civil partners separate or divorce/end their civil partnership, how are their assets and monies divided? Every case is different. The aim is to be 'fair'. In striving to achieve 'fairness', English law requires that 'all the circumstances of the case' be taken into account, 'first consideration being given to the welfare while a minor of any child of the family.....' and for the following factors to be especially regarded:-
a) the income, earning capacity and financial resources of the parties. So if, for example, one party's income and mortgage borrowing capacity greatly exceeds the other's, the difference will be taken into consideration.
b) the financial needs of the parties. This means, for example, the needs of the parties to be housed as well as their need to be able to 'make ends meet'.
c) the standard of living of the family before the parties' relationship broke down.
d) the ages of the parties and the duration of the relationship. For example, a short relationship will not be dealt with in the same way as a long relationship. Living together prior to marriage can be taken into account when determining the duration of the relationship.
e) any physical or mental disability of either party.
f) contributions made (or to be made) to the welfare of the family. So, for example, the wage-earning party cannot successfully claim an enhanced settlement as against the non wage-earner who has stayed at home to look after the children and the home.
g) conduct if 'inequitable to disregard it'. The conduct or misconduct of a party is very rarely relevant. It usually has to be related to the parties' finances. For example, a heavy gambler who has recklessly depleted family money on gambling or a party who has attacked his or her partner and caused an injury which has prevented them from working (and therefore earning an income).
h) the value of any benefit which a party will lose when the divorce/dissolution goes through. This commonly (but not exclusively) means pension benefits which can now be shared between divorcees or civil partners whose partnership has been dissolved.
The starting point for distribution is 50-50 but it will be obvious from all the above that in many cases, proper consideration of the above factors would result in a 50-50 division being unfair to one of the parties. Adjustments often therefore have to be made.
Happily, most cases do not 'go to court' (i.e. are not 'fought out' in front of a judge who determines the outcome). Over the last 45 years, following the introduction of the above statutory guidelines, there have however been very many cases which have had to be determined by the court and those decisions have put 'flesh on the bones' of the statutory guidelines. These cases also provide family lawyers with assistance when they endeavour to secure a fair outcome for their clients.
This article cannot be and is not more than a 'snapshot' of the law. There is much to consider. At Robert Barber Solicitors, we have experienced solicitors who will advise and guide you so the best outcome can be secured for you and your family.
What Happens When You Can’t Make Decisions For Yourself?
By Alison Playle
We all dread the thought of ill health robbing us of the ability to make important decisions about our lives.
We would like to explain how to take control of your future by doing a Lasting Power of Attorney.
The number of people suffering from dementia is now increasing and will continue to do so. It is impossible to predict the future but you can act now to protect your interests in case your mental or physical capacity becomes impaired.
Lasting Powers of Attorney enable you to nominate someone, such as a family member or trusted associate, to make decisions on your behalf.
The Property and Financial Lasting Power of Attorney allows you to appoint someone to look after your financial affairs.
The Health and Welfare Lasting Power of Attorney lets you grant an attorney authority over such matters as healthcare and the kind of medical treatment you receive (but will only come into effect when you no longer have the mental capacity yourself to make such decisions).
Lasting Powers of Attorney can prevent your family suffering the trauma of having to go to the Court of Protection for permission to take decisions for you in order to look after you properly.
In order to use a Lasting Power of Attorney it needs to be registered with the Office of the Public Guardian. The good news is that the registration fee has recently been reduced and it now costs £82 to register the Lasting Power of Attorney.
Since this is such an important decision, we would recommend that you obtain proper professional assistance from a solicitor to draw up your Lasting Power(s) of Attorney so you can ensure that they accurately express your wishes.
Should you require any further information please contact Alison Playle, solicitor, of our Wills, Probate and Elderly Client Department on 0115 8789000.
23rd March 2018
Freehold Management Companies and Rent Charges
By Aaron Bailey
There is a common myth amongst purchasers of property that management company fees only affect leasehold estates. However it has become increasingly more frequent that freehold property is also subject to management company fees, and both private estates where there are freehold and leasehold properties mixed or solely leasehold or freehold.
In these scenarios management companies are usually set up for the purpose of maintaining communal areas which may just simply be private roads; but can also extend to things such as electric lighting, landscaped gardens, communal parks, street lighting, refuse areas, sewer pipes etc.
Where a purchaser buys a freehold estate that is subject to management company fees, these are usually set out in the transfer deed that they will have signed in order to purchase the property. A good transfer deed will have set out the responsibilities of the management company as well as the responsibilities of the purchaser and any specific contributions that they are responsible for within the deed. It will also include dates payment should be made and whether any accounts will be provided to the purchaser either annually or otherwise. It is important that any purchaser understands these obligations and if the responsibilities or payments are not clear that their legal representative queries these matters prior to an exchange of contracts.
On freehold Estates it will be important to check that there are no restrictions that may affect the purchaser during their ownership of the property; these can be restrictions on things such as external decorations, parking, external alterations, and aerial or satellite dishes.
If you have already purchased your property but are unsure about the information that was contained in your transfer deed a copy can be obtained from the land Registry website for a small fee.
Where properties are freehold they may be subject to a rent charge sometimes called a chief rent, these can only be applicable on Freehold Estate and will not affect Leasehold Estates.
A rent charge is usually an annual sum of money paid to a third party who has no other interest in the property. They are called the rent owner. These rent charges are usually historic and go back many centuries to an historic system when people would sell land for development and could charge people for living on it.
Estate rent charges are only legal if they are supported by covenants in the transfer which carry obligations to provide services and repair etc.
For any queries relating to this article or Conveyancing queries in general, please email Aaron: firstname.lastname@example.org or contact us on 0115 955 2299
20th February 2018
By Paul Richardson
Family Mediation is fast becoming one of the most attractive ways for separating couples and others involved in family disputes in attempting to resolve their issues.
Family mediation can offer separating couples the opportunity to come together with the aid of a purely impartial mediator to discuss the issues, whether these be in relation to children, property and finances or all of these issues. The mediator ensures that the process is balanced and each party has their say and can be heard.
The benefits of mediation compared to the use of solicitors or Court proceedings include:-
- Both parties remain in control of what decisions are made for themselves and if applicable their children, whereas Court proceedings could result in a Judge or Magistrates making an Order that both parties would be bound by and neither could be entirely happy with.
- With the average costs of Court proceedings being in their thousands of pounds, mediation offers a more affordable alternative to resolving the issues.
- Mediation can also provide a much quicker way for the issues to be resolved rather than protracted negotiations via solicitors or Court proceedings which can last for months or even years in some cases.
- The informal nature of mediation, with the discussions being without prejudice which means that whatever is discussed or said in mediation cannot be used in any subsequent Court proceedings, can provide a less stressful platform for the parties to attempt to reach mutually acceptable proposals for themselves and their children.
Should Family Mediation be a process which you feel could assist you to resolve outstanding issues between you and your former spouse or partner then please contact us at Accord Mediation on 0115 969 4800 for further information.
30th January 2018