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What is probate and when is it required?

In the first three months of 2023, the Family Court saw 69,208 applications for probate grants, up 12% compared to the first quarter of 2022. Notably, the court managed to issue over 50,000 probate grants during this period. Furthermore an unprecedented 89% of applications, and 90% of grants, were processed digitally, signifying the continual shift to the court’s online system.

While the courts are making headway, they remain inundated with a growing number of applications, as it has also become apparent that a significant portion of the population is neglecting to establish a will, putting more pressure on the system.

Recent surveys have unveiled that a staggering 59% of UK citizens have not created a will, and this number rises even higher to 65% among individuals aged 45 to 54. The absence of a will not only complicates the inheritance process for loved ones but also puts more strain on the courts.

This blog explores in more detail probate and its significance in managing and distributing assets of someone that has died, delving into the scenarios where probate is required and emphasising the need for validating the will, and appointing an authorised person to manage the estate.

What is probate?

When someone passes away, their assets (money, property, and belongings) are called their “estate.” Probate is the legal process of managing and distributing this estate, which includes collecting owed money, paying debts (like taxes), and dividing the remaining assets among beneficiaries. You should not make any financial plans or put a property on the market until you’ve got probate.

When is probate required?

Probate validates the will (if available) and appoints the person authorised to manage the deceased’s estate. The executor of a will is typically the person appointed by the deceased (testator) to administer the estate according to the terms of the will. The testator can choose anyone they trust to be their executor, not necessarily the next of kin.

If the deceased did not name an executor in their will or if the will is deemed invalid, the next of kin might have the right to apply for probate and become the administrator of the estate.

The individual appointed as the executor in a will is responsible for managing the deceased person’s estate based on the will’s provisions. The testator has the liberty to select anyone they trust as their executor, without requiring them to be the next of kin.

If the deceased person did not designate an executor in their will or if the will is declared invalid, the next of kin may have the right to seek probate and assume the role of estate administrator. A Residuary beneficiary can also step up to administer the estate.

When a person passes away without leaving a valid will (intestate), the estate’s distribution follows intestacy rules. In such circumstances, an administrator will be appointed to oversee the estate’s distribution, functioning similarly to an executor’s role.

To handle the assets and distribute the estate, both the executor and the administrator must first obtain a grant of probate or a grant of letters of administration, respectively. These grants confer legal authority to manage the deceased person’s assets and fulfil their wishes or carry out the estate’s distribution in accordance with the law.

What is a grant of probate?

A grant of probate is a legal document that allows the holder to access private information about the deceased, such as bank accounts, as well as to resolve outstanding tasks like debts. This is usually the next of kin or appointed executor. It’s worth noting that this grant is only ‘of probate’ if the person who died had a will. If they didn’t have one, then it’s called a grant of letters of administration, and must be applied for.

Regardless of whether the deceased had a will, a grant document allows the holder to deal with the deceased’s estate. This can include everything from debts to assets, although when it comes to distribution, it must strictly follow the instructions in the will. If there isn’t a will, the law determines who will get the assets.

Applying for a probate if there is a will

The person named as an executor in the will can apply for probate. This is still true even if they were only made an executor in a revision of the will (a ‘codicil’). It’s common for the deceased to have told them in advance so that they’re aware of the responsibility and will prioritise it when the will-writer passes away. An executor is not entitled to any inherited assets by taking on that role.

Applying for probate requires the will to be physically included in the probate application. Copies of any form do not qualify, and the version of the will being sent must be the most recent and updated version. Ideally, the deceased should have informed the executor about the location of their will. It may not be in their home – the document could be held by a solicitor’s office or the national probate registry in Newcastle, for example.

There can be multiple executors to deal with a single case of probate. If desired, the right to be an executor can be forfeited. This can also be done permanently if the potential executor has no interest, or capacity, to apply in the future. Probate is a crucial legal process that manages the distribution of assets after someone’s passing. Understanding probate requirements, whether with or without a will, ensures a smooth transition of assets. Seeking advice from qualified probate solicitors, like Thomas and Thomas Solicitors, can be valuable. Overall, comprehending probate empowers individuals to plan for the future and simplify estate management.

If you are looking into probate or need legal advice on a related matter, don’t hesitate to contact Thomas and Thomas Solicitors today for a no-obligation discussion. Our team of probate solicitors are here to help.

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The difference between exchange and completion

In short, an ‘exchange’ is an exchange of contract whereby the buyer and seller are legally obligated to carry out the property sale. 

Whereas ‘completion’ takes place after contracts have been exchanged. At this point, the buyer receives the keys to their new house and the seller transfers any outstanding funds to them. 

In this blog we outline in more detail the difference between these two processes to help guide and prepare you for what can be a daunting yet equally exciting time of life.  

1. Contract details  

When preparing the contract, it is essential that the details are all correct. Most importantly, these include your name and information, as well as that of the property, and the price that has been agreed upon. Part of the contract should be a fittings and contents list, so ensure that you’re happy with its content and let your legal representative know about any plans to purchase from it. The most essential date to confirm for the entire process, however, is the exchange of contracts. This is the day that the contract will become legally binding for both parties, and neither can withdraw after this point without a financial penalty. This is done in order to confirm a completion date, which will be the day that the buying party will legally own the property.  

2. Exchange of contract  

The exchange of contracts can be approached in several ways.   

  • A simultaneous exchange and completion where both the contract exchange and the transfer of ownership can happen on the same day. This gives both buyer and seller full flexibility with no commitment until the day of completion itself. 
  • Exchange of contracts in advance of completion, which allows for little to no flexibility.  
  • Exchange of contracts in advance of completion with a coronavirus clause which grants some flexibility in the event that a ‘coronavirus’ related issue occurs for either the seller or buyer. This can be beneficial as it allows you to delay completion however, the seller could also stall or withdraw completely if they are affected.  

3. The deposit 

Upon exchanging contracts the buyer will pay a 10% deposit, and should the seller default on completion, the buyer will be entitled to its return (and potentially claim damages for any losses). However, the seller can use all or part of your deposit towards their onward purchase with any remaining balance held by the solicitor. For newbuild purchases, the developer’s solicitor will immediately release the deposit to the developer. If a deposit is not available to secure the exchange of contracts, then contact your legal representative to discuss alternatives. To find out more details on this part of the process, read our ‘guide’ here.  

4. The completion date

This is the day you move.  Just before contracts are exchanged, legal representatives will manually insert the date, and the sellers, if they have not already done so, must evacuate the property on that date. The representatives must send the completion money to their solicitors to reach their bank account by 1pm that afternoon. If cleared monies are not made available to the legal representatives in a timely manner, you will be responsible for paying daily interest (at the % rate specified in the contract). You must ensure that representatives have cleared funds from you (other than the mortgage loan, which is covered below) at least 24 hours prior to the completion date. 
 

5. Property condition 

The buyer accepts the property in the state and condition it is in at the exchange of contracts. It’s advised to conduct your own property investigation and surveyor’s report before reaching this stage. If there’s an expectation that there will be work done on the property before the completion date, then this must be agreed upon and confirmed before contracts are exchanged. Additionally, it’s important to have building insurance in place from the date of exchange of contracts and not completion as any risk to property damage between the two processes, will be the buyer’s responsibility.   
 

6. Delays and completion failure 

Although rare, unforeseen circumstances can delay the completion date such as death, illness or extreme weather etc, and the contract accommodates for this with a daily penalty that can be paid by the defaulting party. This would also make them responsible for any reasonable out-of-pocket expenses caused like hotels or removals etc. If either party does not complete the on-completion date that was agreed in the contract, it will roll on to the next day. The defaulting party will also be liable for any costs caused by this. If either party withdraws and the purchase fails to complete, it is best to contact your legal representative for support and guidance. 

At Thomas and Thomas Solicitors, we know that buying and selling property can come with challenges during a significant time in someone’s life. That’s why we offer our reliable residential and commercial conveyancing services to help you throughout the process.

We’re dedicated to making the process of buying and selling property as easy as possible, and we’re proud to offer a free no obligation online quotation for the cost of our service bespoke to your needs. This can be accessed here, anytime and anywhere, to help streamline the entire process. If you need any advice or guidance on conveyancing matters, our expert team is always ready to help. 

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A guide to the conveyancing process when buying property

With over 4.5 billion people worldwide now on social media, we are constantly bombarded with people’s opinions, views and even fake news on various matters. While it’s insightful to hear the perspectives of everybody around us, not all of them are able to offer accurate legal advice.

Solicitor firms play an indispensable role in the legal landscape by leveraging their professional training and expertise to navigate the complex realm of law. Whether you require legal assistance for personal or business purposes, a legal representative can provide invaluable guidance and support, particularly when dealing with transactional matters like conveyancing. Having an expert opinion at your disposal can make all the difference in achieving a favourable outcome.

The Conveyancing Process

Conveyancing is the legal process of transferring property ownership from one party to another. This includes any type of property purchase, whether you’re the buyer or the seller.

The official conveyancing process starts once the seller’s legal representative issues a contract to the buyer’s legal representative and continues until the buyer receives the keys to the property, which marks the legal completion. Prior to completing, the legal representatives for the buyer and seller exchange contracts to set the completion date.

The process typically takes around 8-12 weeks however, a solicitor can expedite the process by promptly submitting relevant information on your behalf and ensuring it progresses without any delays. Also ensure that you receive regular updates from your solicitor, notifying you if there are any issues.

Buying and selling property

Buying and selling property may seem straightforward in theory, and in an ideal scenario, it should remain that way. However, in the UK, conveyancing is a highly regulated field, with stringent regulatory requirements in place for good reason. This often leads to legal consequences which can be challenging for untrained individuals to navigate alone which is where legal professionals come in with their specialist expertise and skills to guide you through.

Normally once all parties have officially signed the contract, the legal representatives or conveyancers on both sides would work together to agree on a completion date and then proceed to exchange contracts. It is the responsibility of the seller and their conveyancer to address any queries or concerns raised by the buyer before the contract is signed. When the buyer’s legal representative is satisfied with all replies to enquiries and search results, they will then advise the buyer of the same and then agree a completion date with sellers and proceed to obtain a deposit from the buyer to exchange contracts. However, it’s important to note that the specific details and requirements of a property transaction may vary depending on the complexity of the legal title and the entries in the search results and the terms agreed upon between the parties involved. Therefore, it’s always advised to consult with a qualified legal professional or conveyancer for accurate and up-to-date advice on a specific legal matter.

Ultimately, the legal representative will guide their clients.

Get in touch

At Thomas and Thomas Solicitors, we understand that buying and selling property can be daunting at times, especially given the requirements involved. We provide trusted residential and commercial conveyancing services. To make the buying and selling of property as easy as possible we offer a free online quotation service which can be accessed anytime from our website or by contacting our office to obtain a quote, once this quote is accepted online you will be instantly sent an email with documents to complete, helping to streamline the entire process. For further advice on conveyancing, get in touch with our expert team

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What are the two types of Lasting Power of Attorney?

People in the UK and worldwide are living longer. Latest statistics show that by 2030 one in six of us will live over the age of 60, with 70 now classed as the new ‘65’ or the start of old age.

As more of us live to a ripe old age, with this does come the increasing risk of us becoming incapacitated for one reason or another, affecting our ability to make our own decisions. This could be because of old age but also because of an unexpected illness or a serious accident.

We cannot be certain about what the future holds for us. In the event of an unexpected occurrence, the consequences on our wellbeing, legal status, and practical affairs can be significant and create hardships for our family members who are left to deal with them. Nevertheless, we can prepare for this by creating a Lasting Power of Attorney (LPA) in advance to manage our healthcare, welfare, and financial matters.

What is a Lasting Power of Attorney?

An LPA is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘Attorneys’) to help you make decisions or to make decisions on your behalf. This gives you more control over what happens to you if you have an accident, illness or disorder that leaves you lacking mental or physical capacity.

LPAs cannot take effect until they have been officially registered, which takes 6 to 8 weeks. The Attorney must be over 18 years old, and two or more Attorneys can be appointed to act. They can act together or independently in respect of some matters and independently on others. There are also no provisions for a replacement Attorney to be put in place in the event of the death of the Attorney.

In England and Wales there are two types of LPA:

  • Property and Financial Affairs Lasting Power of Attorney
  • Health and Welfare Lasting Power of Attorney

It is important to note that you can make both types of LPA if you wish, and you can appoint different Attorneys for each one. The LPA is a powerful legal document, and it is crucial to carefully consider who you choose as your attorney and the powers you give them.

  • A Property and Financial Affairs LPA allows an Attorney to manage your finances and make decisions about your property on your behalf. For example, paying your bills, managing your bank account, selling your property, making investments, and running your business. 
  • A Health and Welfare LPA allows an Attorney to make decisions about your health and welfare on your behalf. This could include, deciding where you should live, the medical treatment you receive, what you should eat, what activities you should participate in and end-of–life decisions. 

The key differences between the two Lasting Power of Attorney 

The type of decisions the Attorney is authorised to make on your behalf is what sets the two LPAs apart.  

A Property and Financial Affairs LPA allows the Attorney to only make decisions about your finances and property. They cannot be bankrupt, and you can put in place a Trust Corporation. While a Health and Welfare LPA allows the attorney to only make decisions about your health and welfare.  

The point at which the LPA can be used is another difference. A Health and Welfare LPA can only be used if you lose capacity, as opposed to a Property and Financial Affairs LPA, which can be used while you still have mental capacity. 

So, ensure to carefully consider your options and choose the right type of LPA for your needs. 

What are the advantages of creating a Lasting Power of Attorney? 

An LPA can offer several advantages to help protect you and your loved ones including: – 

  • Ensuring that your wishes are followed 
  • Avoiding court proceedings 
  • Peace of mind 
  • Flexibility within your choices 
  • Control over your assets 

It is essential to assess your options and seek professional advice if you have any questions or concerns.  

Why use a solicitor to make your Lasting Power of Attorney? 

Legal expertise and customised advice: a solicitor is a legal expert who can guide you through the complex legal process of creating an LPA. They can provide you with specialist advice and ensure that your LPA meets all the legal requirements as well as tailoring to your specific needs. 

They can help protect you against fraud and abuse by ensuring that the LPA is executed properly and that the person you choose to act as your Attorney is trustworthy and competent. 

Furthermore, using a solicitor reduces the chances of making a mistake that could render your LPA invalid. 

Overall, using a solicitor to create your LPA can ensure that your wishes are properly recorded and legally binding, providing you with peace of mind and protection against potential risks.  Thomas & Thomas Solicitors, one of the leading law firms in South Wales, provide the only professional Lasting Power of Attorney service in the Maesteg area. For further advice on LPAs, get in touch via the expert team