Individuals Q&A’s

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Q&As

A friend of mine tells me she has given her property to her children in order to protect it from nursing home fees. Will this work and how can I do it

If you need to go into a nursing home and if you do not have any capital assets then the local authority are duty bound to house you. They will however, means test you.

If you own a property or have significant assets then you will have to pay the fees yourself. You are currently allowed to hold £23,000. It may be possible to transfer capital and assets (in particular your house) to the next generation. This is done by transferring the property across and usually making a Trust Deed to guarantee your right to remain living at the property.

There are no guarantees however, because if the local authority can prove that an asset was given away with the intention of depriving them of it they can take it back into account. The longer the length of time between the gift of the property and the requirement for the nursing home fees the better. The issue is somewhat complex and would benefit an initial consultation if you are interested in this.

Are Pre Nuptial Agreements binding

No. But increasingly the agreement is taken into account during divorce proceedings, especially in shorter or second marriages where there are no children. However to strengthen any pre-nuptial agreement it is recommended that full financial disclosure takes place between you and your partner and that you both have the benefit of independent legal advice before signing the agreement. The agreement should be finalised at least 21 days prior to the wedding.

Are legal costs recoverable at an Employment Tribunal

Legal costs are irrecoverable by an employee at an Employment Tribunal even if the claim is successful unless the other party has acted unreasonably.

Can I appoint more than one person to be my Attorney

Yes. You can appoint more than one person and if you do, you can specify that they must all sign each document or that they can act individually. You can direct that they must act together in some decisions, such as selling your house or dealing with sums of money or assets above a specified value, but can act individually in others. You can also appoint someone to act as a replacement if your Attorney dies or is unable to act.

Cohabitation. My girlfriend and I are splitting up. We have lived together for many years in a home which she owns. What are my rights

Cohabitees do not have the same ‘automatic’ protection in law as to their property rights as those who have either entered into marriage or become registered civil partners. A party is not automatically entitled to anything that is owned or registered in their partner’s name. This is a complex area of law where the outcome is very much dependant on Trust Law as applied to the facts of the particular case.

It is always open to cohabitees to enter into a contract known as a Cohabitation Agreement which will regulate way the parties manage their finances both during the period of cohabitation and on separation. It is an important requirement of any agreement that both parties receive separate and independent legal advice prior to entering into the agreement.

Do I need a Power of Attorney and who will look after my affairs if I become unwell or mentally incompetent

If you are unable to look after your own affairs then a Lasting Power of Attorney is essential. This is a document which gives power to a third party (usually children, for instance) and enables them to deal with your property and affairs even welfare issues. Such documents need to be put into place before you become unwell. There are two types:-

(a) A Property and Affairs Power which enables someone to deal with your finances, payment of bills, collection of funds and sale of assets.
(b) A Welfare Power which is designed to give someone power to make decisions about where you live, medical treatment you receive and other related issues.

The documents are reasonably straight forward to put in place but a little bureaucratic and technical and can take up to three months before finalisation. If you are interested we would be pleased to offer an initial free consultation.

Do I need to make a Will

The short answer is “yes”. If you wish to have complete control and certainty over:-

(a) Who your executors are – who will be responsible for sorting out your affairs,
(b) Who your beneficiaries are – who actually receives your assets,

Then a Will is essential. You may also wish to determine who will be guardians for your children; whether certain personal belongings or minor cash gifts should go to friends and family; at what age your children might benefit from your assets.

Furthermore, if there is no Will then the Intestacy Rules are very arbitrary. Let me give you some examples:-
(a) If a husband dies leaving his wife and children, his wife will not necessarily inherit the entirety of his estate. She will inherit the first £250,000 plus joint assets and chattels and all the rest will be shared, as to half to her in a life interest trust and as to half to the children. In certain circumstances the wife might not even inherit the house.

(b) If a young married couple tragically die together without children and neither the husband’s family or the wife’s family with inherit everything depending on who has died first. The law generally assumes that the elder dies first and the younger second unless medical evidence can be brought to prove otherwise. Therefore one or other of the families will lose out.

(c) If somebody dies without many living relatives then there can be complex family tree issues to sort out which can only increase costs and see assets being split between a myriad of distant relatives.

Does your firm offer a no win no fee service for personal injury

Yes, this firm does offer “no win no fee” in personal injury matters. Please contact one of our personal injury team for further details.

How fast can you purchase a house

This is very much an “it depends” question. Our record here is one hour from instructions to completion. However this is highly unusual and a more typical time is perhaps four weeks to exchange and two weeks after that for completion. You are likely to be able to move faster if the chain of buyers and sellers is short and the communications between solicitors is good.

How is a Probate obtained

Probate is obtained by in effect, a form filling exercise. There is a need to ascertain all of the assets and liabilities of a deceased at the date of his or her death. The person appointed as executor in the Will applies for Probate by completing forms and an Oath and sending the Oath and the forms and the Will to the Probate Registry with a fee.

How long do I have to make a claim for unfair dismissal

An employee has three months from the date of dismissal in which to commence proceedings at a Tribunal.

How long does it take for the divorce to be final

To be able to start divorce proceedings your marriage must have been married for a year. If both you and your partner consent to the divorce and there are no complications it typically takes between five and six months for the divorce to be finalised once the initial application has been made.

I bank with HSBC and I have been told that my own solicitor cannot act for them in securing a mortgage over the house I have just agreed to buy. They have always done so in the past. Why is that

HSBC have made a decision to use separate solicitors to act for them in a mortgage than are acting for you in the purchase. They believe this cuts down the possibility of fraud, but some believe there are other reasons. There is no doubt at all that this will slow down your purchase transaction considerably and make it more expensive.

I have agreed to buy a house for £251,000. I have been told that below £250,000 the Stamp Duty Land Tax is payable at 1% whilst above that threshold the rate is 3%. Is there anything I can do to pay at the lower rate

There may be. What you certainly cannot do is secretly hand over the money to your seller under the table nor can you divide the property up into say house and garden and pay separate amounts. However there is the possibility that as well as the house you are also buying perhaps carpets, curtains, furniture and loose white goods in which case it is perfectly acceptable to apportion some of the price to those items as long as the amount attributed is a fair second value for them. This is a good example of tax planning rather than tax avoidance.

I have been told by a broker that I can save large amounts of Stamp Duty Land Tax by using a particular scheme but I will have to pay him a fee. Do such schemes work

In our opinion no. The Revenue have now said that they are illegal and they will track down and charge everybody who has used one of these avoidance schemes.

I have heard that Probate takes a long time and is very expensive to obtain.

The timing of obtaining Probate is difficult to judge. It really depends on how many assets the deceased has and how complicated the estate is. We say as a rough rule of thumb that in most normal cases we would expect to have the paperwork together to make a Probate application within 2 – 3 months and to have cashed in most of the assets and have paid out most of the estate within 4 – 6 months. In some cases which are very simple, the timing can be measured in weeks. Other cases where there are investments and properties to sell, it could take a considerable time to finally sort matters out.

As to costs this firm does not charge any percentage uplift. The Law Society actually recommends costs based on a percentage of the estate. Many banks charge as much as 3% or 4% of the gross value of the estate. We do not think that is entirely fair. We here charge according to the time we take in a particular matter. As a rough rule of thumb it is surprising how often in an average estate (if there is such a thing) costs approximate to around 1% of the value of an estate based on the time we have taken.

I have no family living close by who will look after me if I become unwell.

We can assist you by becoming your Attorneys under a Lasting Power of Attorney document. We have a number of clients who we look after financially ensuring that their investments are looked after properly, their pensions are collected, nursing home fees paid and financial needs and requirements met.

If I make a Lasting Power of Attorney does this stop me from dealing with my affairs myself

No – you are still free to make your own decisions and to write cheques and deal with your property as you always have. When the Lasting Power of Attorney is registered with the Court of Protection it also allows your Attorney to do so but they must act in your best interests and consult you so long as you have mental capacity.

In a divorce, will all of the money and property be split between us in equal shares

Not always. All marriages are different, and so the court have a wide discretion to attribute assets and make decisions, taking into account the circumstances of the marriage and its breakdown. The courts will always consider the needs of any children first.

Is it alright to make a home made Will

There is danger here of sounding like a pompous lawyer. Regrettably however in the writer’s experience the answer is “no”. In his 20 odd years of dealing with Wills it is surprising how often he has found there to be problems with home made Wills with ambiguities causing unintended consequences. It is much better to pay a professional a relatively modest fee to put a professional Will in place.

To give an example the writer once dealt with an estate of an elderly lady who had died leaving a home made Will intending to leave everything to her partner. Unfortunately the Will had not been properly witnessed nor dated and therefore was not a Will. Instead of her partner of many years standing inheriting the estate the assets ended up being distributed between more than 30 distant relatives. A professional Will would have avoided:-

(a) The deceased’s wishes not being carried out and,
(b) Extensive costs being incurred in sorting the estate out.
When might I need a Trust?
There are a whole host of reasons why you might find it advantageous to use a Trust. In effect, a Trust is a legal concept where you are able to put assets into a place of safety. Let us give you some examples:-

(a) If you arrange to write life policies into a trust then on your death instead of the life policy money being part of your taxable estate, the money can be put into a place of safety for the benefit of your spouse or children, for instance.
(b) Similar arrangements can be made with pensions that have not yet been taken or death in service benefits.
(c) In cases where perhaps there is a second marriage, you may wish to benefit your surviving spouse but in such a way that after his or her death the assets are guaranteed to go to your own children.
(d) You might have infant children and you will wish the assets to be looked after for them until they are mature, not necessarily 18 but perhaps say, 21 or 25.
(e) You might have disabled children who you wish to benefit but in a way that will not make them vulnerable to third parties.
(f) Perhaps you might be concerned about the fact that your children are divorcing or in financial difficulty.
(g) There may be good Inheritance Tax reasons.

Trusts are really good vehicles where family wealth protection and/or Inheritance Tax planning is required.

Is there a time limit for personal injury claims

Yes. Typically it is three years; however it may also run from the date of knowledge. Please contact one of our personal injury team to discuss this further.

My brother has died and left no Will. How do we deal with his estate

Where someone dies without leaving a Will then Letters of Administration (a type of Grant of Representation) needs to be applied for in order to be able to deal with a deceased’s assets. As to who is entitled to apply for Letters of Administration depends on the Intestacy Rules. The Intestacy Rules will also determine who inherits the estate as well. This can very quickly become somewhat complicated and it is recommended that everyone should, wherever possible, make a Will. If an elderly person dies in circumstances where:-

(a) There is no surviving spouse,
(b) There are no children,
(c) There are no parents surviving,

Then we would already be looking at the deceased person’s brothers and sisters or if brothers and sisters had died then the deceased’s persons nieces and nephews. If there are no brothers and sisters then we would be looking at uncles and aunts and the off spring of uncles and aunts. The possible candidates for Letters of Administration and for beneficiaries quickly becomes very complex

My husband has died, do I need a Probate and what is it

A Probate is a document that enables you to cash in and/or deal with a deceased person’s estate. Much like you need a vehicle registration document before you can sell a car or a share certificate before you can sell a share, a Probate is often required in order to deal with a deceased person’s assets.

It is not always necessary to obtain a Probate. If all of a deceased assets are jointly held with a surviving spouse then those assets will pass automatically. If the assets in a deceased’s name are very modest, it might be possible to cash them in without a Grant of Probate. In most cases, however Probate is required.

My partner and I want to divorce. We dont blame each other, but just wish to move on. Can we still get a divorce on that basis

Yes you can. The sole ground for divorce is the irretrievable breakdown of the marriage, and when petitioning for a divorce you must state one of five reasons as to why the marriage has broken down. These are;

1) Adultery
2) Unreasonable behaviour
3) Desertion (for a period of at least two years)
4) Two years separation with you both consenting to a divorce
5) Five years separation if only one of you wishes to divorce.

Therefore you can divorce without having to place blame on your partner, if you live or have lived separate lives for a period of two or five years.

To speak to one of our experts please call us on 01749 836100 or Ask us a question



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