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Five areas to consider when leasing commercial property

The UK commercial property rental market is predicted to look strong for at least the next five years. Latest Statista figures forecast growth in rentals between 2023 and 2027 across all sectors from industrial, office to retail, shopping centres and warehouses. Perhaps surprising to some, with the rise in working from home, office space rentals are predicted to be one the highest with a 1.1% increase expected during this period, while industrial real estate rents lead the way with an anticipated 3.3 % per year growth util 2027.

This is all very encouraging however, it is worth noting that whether you’re an experienced commercial landlord or in the process of purchasing your first property to lease, commercial leases are more complex than residential leases. They come in various forms, each with its own set of terms and conditions. Therefore, we’ve outlined below several factors to consider within a commercial property lease that both the landlord and tenant should be aware of.

Basics of a commercial lease

A commercial lease is a legally binding contract made between a business tenant and their landlord. There are usually two parties involved. The ‘lessor’, who is the landlord and owns the property and the ‘lessee’, who is the tenant and is allowed to use the property in exchange for rent.

The lease gives the tenant the right to use the property for commercial activity for the lease’s duration in exchange for regular payment to the landlord. Any agreements made, whether financial or other, should be recorded in writing for future legal reference. If a dispute occurs over the lease, a court will hear evidence, and it usually upholds a written agreement over anything verbal. In addition to this, commercial leases have less government protection than residential leases, as businesses are expected to be able to negotiate for themselves. However, this also means that both the tenant and the landlord have more bargaining power.

The Lease Term

When working with a commercial conveyancing solicitor, consider your lease term, which is the length of time that the tenant has agreed to rent the property. This may differ depending on the agreement made. It should typically stipulate a ‘fixed term’ which is when the lease starts and ends on specific dates however either party can terminate the lease earlier if there is a Break Right in the lease.

Also, attention to detail in the contract is key as the landlord cannot increase the rent or change any terms of the lease unless they reserved the right to do so in the terms of the lease. When the lease term is up the tenant may have the statutory right to renew under the Landlord and Tenant Act 1954 however, a lease can contract out of the Landlord and Tenant Act which means that there is no right to renew. This means that after a fixed lease ends, the landlord may evict their tenant or agree to a month-by-month payment basis for them to stay. Alternatively, a new lease can be signed.

If you have a periodic tenancy then this will continue indefinitely until either the tenant or the landlord gives notice to terminate the lease. At the end of the notice period, the tenant must move out or the landlord can begin eviction proceedings. In a periodic lease, the landlord is usually able to raise the rent and change the lease’s terms so long as notice is given.

Financial Payments

Stipulating in your lease how much will be paid in rent is critical for the security of both the tenant and landlord. Rent can be paid on any date that the landlord and tenant agree on, but it is usually paid monthly or on quarterly days of the financial year. This minimum rent, excluding any additional or operating costs, is known as the ‘base rent’. Commercial leases can also include a rental arrangement known as a ‘percentage lease’, common in shopping centres and similar premises, where the tenant will pay a base rent in addition to a percentage of their gross income.

Some lease types come with specific renting conditions. In an ‘FRI’ lease, the tenant covers the costs of maintenance and repair on the property, as well as insurance (whether insured directly or through the landlord).  A ‘Gross rent’ commercial lease only requires that the tenant pays a base rent while the landlord pays all other expenses, including operation, tax, maintenance, utility and insurance.

Check service charges 

Whether you hold a Gross rent commercial lease or other, ensure to check the lease for any service charges, which is the cost of maintaining and repairing a property that the landlord can charge back to the tenant. Negotiate these within the lease before signing, taking the advice of a commercial conveyancing solicitor, as these expenses can range from things beyond repairs and maintenance to insurance premiums and employing staff such as gardeners and cleaners. Check as there may also be a ‘sinking fund’ in the lease which allows landlords to collect money for any unexpected costs such as roof repairs.

Security Deposit

Finally, consider your security deposit when drawing up a commercial lease. This is a sum of money that the tenant must pay to the landlord at the beginning of a lease, used to cover any property damage or missed rent during their stay. In commercial conveyancing, this sum can be whatever amount the landlord asks for so ensure to negotiate. What remains of this deposit will be returned when the tenant moves out.

If you need help and support on matters concerning a commercial lease, our team of commercial conveyancing solicitors at Thomas and Thomas Solicitors provide a comprehensive range of services. For further support and advice, please contact us here.

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Understanding Unfair Dismissal

If you’re facing an employment related legal issue, you’re not alone. We understand that dealing with employment law can be overwhelming, whether you’re the employer or the employee.

Unfair dismissal is a statuary right that is important to understand when an employee is suddenly dismissed. Successful cases that received compensation have been falling since 2010, although in 2021/22, there was a rise of cases that resulted in the employee’s favour. Today, we’ve explained what you need to know about unfair dismissal, and how it can affect you.

What is unfair dismissal?

Employees that have worked at a business for over two years have the right to not be unfairly dismissed. However, employees that have not yet worked at a business for two years may still have this right, as there are exceptions. What falls under ‘unfair dismissal’ must include at least one of the following:

  • No fair reason for dismissal
  • Not enough reason to justify dismissal
  • The employer did not follow fair procedure

Fair dismissal procedure must also follow the Acas Code of Practice on disciplinary and grievance procedures if the dismissal’s reasons involved misconduct or performance capability. While employees are generally protected by the Acas code, every company has its own disciplinary or dismissal process to follow.

There is a limited window of opportunity for an employee to begin the appeal process for an unfair dismissal. This starts from the last day of employment and lasts for three months.

What employers should do if they want to dismiss an employee

An employer must show that there is valid reason for an employee to be dismissed. If there is more than one reason for dismissal, then the principle reason must be valid. The reasons given for an unfair dismissal cannot be based on new discoveries or behaviour after it has already occurred.

However, even if an employer proves that the dismissal is for fair reasons, it is still ultimately up to the Employment Tribunal to decide whether the dismissal was fair or not. They will decide if the employer responded reasonably in dismissing the employee, or if a less severe penalty would have been adequate.

If a tribunal believes that no reasonable employer would use the given reason to dismiss an employee, then the dismissal will still be determined as unfair. This decision will be made, factoring in the size and resources of the employer, such as if they are an SME.

Five fair reasons for dismissal

To be considered fair, the reason for dismissal must fall into at least one of the five categories that are set out by the Employee Rights Act 1996. These include;

  1. Lack of Capability:
    The employee lacked the qualification or the ability to perform the work that they were employed to do.
  2. Genuine redundancy:
    The employee’s role is no longer necessary due to business reasons.
  3. Conduct:
    The employee behaved in ways that amount to gross misconduct, including poor attendance, dishonesty, and failure to follow instructions.
  4. Contravention of a statutory enactment:
    If an employee is no longer able to perform a key part of their role, like if they are banned for speeding when their day-to-day work involves driving, this is what is known as contravening a statute.
  5. Some Other Substantial Reason (SOSR):
    The dismissal follows none of the above reasons. SOSR could include a personal disagreement with the employer or a non-renewal of a fixed-term contract that is specific to certain roles. Every SOSR case will be determined by its own context and facts.

The consequences of unfair dismissal

If a tribunal finds that an employee has been unfairly dismissed, the employer may be given one of several penalties. These may include reinstating the employee in their previous position or re-engaging them in a different role.

The employer may have to pay compensation, which factors in the age and gross weekly pay of the unfairly dismissed employee, as well as their length of service. If the tribunal orders that an employee is reinstated and this does not happen, the employer may have to pay additional compensation.

There is a limit on how much a tribunal can award an unfair dismissal, except for cases involving health & safety and whistleblowing.

Thomas and Thomas Solicitors is a friendly, local law firm that has a unique insight and an inclusive approach to clients with years of experience. With a team of specialists in their specific legal field, the firm offers a range of legal services, including employment law. Get in touch with us today by emailing reception@tandtlaw.co.uk or visiting https://www.thomasandthomassolicitors.co.uk/contact-us/ to find your nearest office.

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How Long Does a Power of Attorney Last?

A Lasting Power of Attorney (LPA) is the most common form of Power of Attorney, granting someone legal permission to make financial and medical decisions on your behalf should you lose capacity to manage these affairs yourself.

It may be an illness or an accident which leaves you incapable of making critical and everyday decisions. An LPA grants that designated individual Power of Attorney (the ‘attorney’) to act on your behalf (‘the donor’) on several matters, from property and finance through to health, depending on whether you hold a Health & Welfare or a Property & Financial Affairs LPA.

The types of Lasting Power of Attorney

A Health & Welfare LPA can only be used once you are unable to make your own decisions and gives your attorney the power to decide on matters regarding:

  • your daily routine (such as washing, dressing, eating)
  • medical care
  • moving into a care home
  • life-sustaining medical treatment

Whereas a property and financial affairs LPA can be used immediately upon registration with the Office of the Public Guardian or held on file should you lose capacity. This document gives your attorney the power to decide on aspects of your money and property, including:

  • managing bank or building society accounts
  • paying bills
  • collecting a pension or benefits
  • if necessary, selling your home.

When does my Lasting Power of Attorney end?

Neither LPAs expire unless certain circumstances change. Once registered, both LPAs remain valid until the donor passes away, the legal document is ended either voluntarily, or because the attorney is no longer able to act on behalf of the donor.

There are several reasons why an attorney may be forced to step down from the role: –

  • If the donor ‘revokes’ it from them.
  • The attorney themselves loses mental capacity.
  • If the donor’s married or civil partner acts as their attorney and they separate, then the LPA will end, unless it was specified in the document that a divorce would not end the attorneyship.
  • If one of two joint attorneys stops acting as an LPA, the remaining attorney cannot continue to act alone unless the document permits it.
  • A Property & Financial Affairs attorney who becomes bankrupt or subject to a debt relief order must also stop acting as an LPA for the donor.

Should a Lasting Power of Attorney be ended for any of the reasons mentioned above, the donor can amend it by contacting the Office of the Public Guardian. However, it is recommended to write up a new document anytime changes are desired because amended documents can become invalid.

Registration for a Lasting Power of Attorney

In England and Wales, the registration for a Lasting Power of Attorney is £82. This can be paid online (such as through Gov.co.uk) or at any location that offers services for the Office of the Public Guardian. As there are two different kinds of LPA in the UK, they must be purchased individually, which can double the price to £164. If a donor is financially unable to pay the fee, there are support schemes available.

The Office of the Public Guardian’s application forms will contain guidance on the payment and setup process of an LPA’s registration, which can take up to 20 weeks if there are no delays. Hiring a solicitor is not required to register, but their experience may streamline the process.

Who can be a Lasting Power of Attorney?

Anybody can act as a LPA on behalf of a donor so long as they are over the age of 18. However, for a Property & Affairs LPA, the holder chosen cannot be bankrupt. If this occurs, the attorney must stop acting as an LPA.

Four in five UK adults have not registered an LPA, with 77% of these individuals being over the age of 55. Yet the number of LPAs are growing, as according to the Office of the Public Guardian, 848,896 documents were registered in the UK during 2022 – a 20% increase compared to 2021.

How do you end a Lasting Power of Attorney?

As an LPA has no expiration date, the attorney must end the legal arrangement if they no longer wish to fulfil the responsibilities of the role. To disclaim an LPA a notification form must be sent to the donor and the Office of the Public Guardian, as well as details of any replacement attorneys listed in the registered document. If there are no replacements available, then an alternative method to help the donor in their decision-making may be necessary.

If you need help and support on matters concerning LPAs, whether that’s setting up the legal document or to make an amendment to an existing agreement, our team of specialists at Thomas and Thomas Solicitors provide a comprehensive range of services for both types of LPAs. For further support and advice, contact us here.

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What is Joint Tenancy?

In this blog, we’ll unravel the intricacies of property co-ownership, specifically the difference between ‘Joint Tenancy’ or ‘Tenants in Common’, and how these choices can profoundly affect your ownership experience. Did you know that there are significant legal and financial differences between both?

How does a Joint Tenancy work?

Property ownership can be shared in two different ways – ‘Joint Ownership’ and ‘Tenants in Common’.

Property can be purchased by any kind of pairing, such as spouses or business partners. However, when this purchase is made, it’s important that the legal title under which the property is held, is clear. This is because future contingencies must be considered, and these will differ between circumstances (like whether the joint owners are personally or professionally related).

Joint Ownership/Joint Tenancy

‘Joint Ownership’, which is also known as ‘Joint Tenancy’, considers both partners the legal owner. However, when one partner passes away, the property remains with the surviving party. This is because the deceased’s ‘interest’ disappears, and nothing needs to done other than to record the death. The property cannot be inherited by the deceased’s relatives because the property still has a living legal owner, this being the co-owner that survived them.

As joint tenants you have an undivided share of the whole property. Up to four people can own the same property. (you cannot have more than four parties registered at the Land Registry).

Tenancy in Common

‘Tenancy in Common’ considers the property to be split between its owners as separate percentages known as shares. These shares do not have to be equal, which means one party could have a much higher share than the other. Because each party is only legally entitled to their own percentage, that share will be inherited by next of kin. Thus, the surviving co-owner of the property will not get this share by default.

For ‘Tenants in Common’ it is sensible and sometimes necessary to document the precise agreement between the owners. This agreement is best recorded in a formal trust deed.

Joint Tenancy versus Tenants In Common

The ideal form of ‘Shared Ownership’ depends on the co-owner’s circumstances and their individual interests.

‘Joint Ownership’ has an appeal for being convenient and simple, leaving minimal paperwork in the event of a death when it comes to who now owns the property. ‘Joint Ownership’ may be preferable if a property owner does not wish for their share to be inherited by their next of kin and would prefer the property to remain with their co-owner. This is often why married couples are in ‘Joint Ownership’ so that the property remains within the marriage by law.

‘Tenancy in Common’ is usually recommended by solicitors because it gives each co-owner more agency when it comes to their share. When a property is split unevenly for example, the party with the larger share may not wish for all of it to go to their co-owner. This is often the case in circumstances such as unmarried couples and business partners where events can change. For example, a business property co-owner may wish for their share to go to their family instead of their partner.

What happens if a shared property owner passes away?

In the event of a shared property owner dying, ‘Tenants in Common’ is recommended if they would not wish for their share to automatically go to their co-owner. A remarried parent may wish to bequeath their share to children from their previous marriage and not their new spouse.

‘Tenants in Common’ may also reduce potential inheritance liabilities, as a party will have greater autonomy over what would be inherited by their next of kin and, as a result, more control over the consequential inheritance tax.

Overall, a good rule of thumb for choosing ‘Tenants in Common’ is when the co-owners will be making unequal contributions toward the property, or there is no positive reason to consider ‘Joint Ownership’.

Thomas and Thomas Solicitors understands that buying or selling a property can be one of the most important financial commitments you will make in your lifetime, and we are here to ensure that the process is handled seamlessly. Our solicitors will guide you through every step of the process.

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A guide to some of the most impactful UK law cases

In the ever-evolving landscape of the UK legal system, certain cases shape the course of legislation and set crucial precedents for future judgements. Join us as we journey through some of the most impactful law cases in the UK. By delving into these legal battles in recent history, we offer a glimpse into the intricacies of the law as well as the marks they leave in society and the judicial system.

Injunctions exposed by the internet

The beginning of the 2010s was a strange time. Social media was rapidly going mainstream, injunctions were all the rage, and the extramarital engagements of football celebs were a popular scandal. However, the case of Ryan Giggs’ injunction against a tabloid newspaper stood out.

In April 2011, the footballer sought to prevent The Sun from publishing claims that he had an extra-marital affair. However, his wish to stay anonymous was short-lived – the gagging order was flouted by thousands of people on Twitter. This became one of the first prominent cases where the law had to react to the age of social media that we were entering.

The case grew even more farcical when an MP used his parliamentary privilege to name Giggs in the House of Commons itself when he was meant to have anonymity. Between this and the Twitter gossip, Giggs ultimately consented to the removal of his injunction’s anonymity in February 2012.

Snail Beer

A court decision was credited with laying the foundations of negligence in common law worldwide… all thanks to a snail. Quite the legacy! Donoghue v Stevenson, also known as the ‘Paisley Snail’ or ‘Snail in a Bottle’ case, was a 1932 debate when Mrs. Donoghue was drinking a ginger beer in a café in Paisley, Scotland. Little did she know that an unfortunate snail was decomposing inside the bottle, and subsequently made her ill.

As a result, Mrs. Donoghue sued the beer manufacturer. The House of Lords held that the manufacturer had breached its duty of care to Mrs. Donoghue as a consumer, resulting in Donoghue winning the case as well as making a full recovery. We can’t say the same for the snail, sadly.

Before this case took place, liability for personal injury was quite restrictive. There had to be physical damage inflicted directly or indirectly, but a noxious substance, like ‘the snail’ beer, was defined by neither trespass. This meant that from the orthodox perspective, Mrs. Donoghue had no sustainable claim, but the court’s decision created a new kind of liability.

Manslaughter under the influence

Another law-defining case that took place in 1967, R v Lipman helped establish what could be used as a defense in English criminal law. It forced the court to deal with the issue of unintentional murder, specifically committed under the influence.

In this case, a couple that regularly partook in recreational drugs, used LSD. The man hallucinated, claiming that he was being attacked by snakes, and while defending himself from these imaginary terrors, he strangled his partner. The police quickly saw the evidence of his guilt, but he claimed that he had no intention of murdering her.

The man was eventually found guilty despite his intoxication, as the court found that by creating a reckless situation with LSD, he had also created a risk that “ordinary sober and responsible people would recognise”. Cause vs intention is a timeless debate that even today is taken on a case-by-case basis in the court of law, but this decades-old tragedy still defines whether a person’s voluntary intoxication could be used as a defense against manslaughter.

Splashing civilians

In January 2014, a 22-year-old driver in Essex faced court summons and a £50,000 fine for driving through a puddle. Why? While doing so, he splashed a mother and her two children. Debbie Pugh was convinced that the driver had done it deliberately because he could have easily avoided the water.

Claims are one thing, but witnesses are another. To the driver’s bad luck (and Pugh’s good fortune!) a police officer was driving behind all of this and seeing the whole thing, PC Mark Hercules pulled over the driver. Officially, the driver was reported for careless driving under violation of Section 3 of the Road Traffic Act upon grounds of driving ‘without reasonable consideration’. According to the Crown Prosecution Service policy, this included ‘driving through a puddle causing pedestrians to be splashed’.

While some cases are isolated incidents in legal history, others become solicitor folklore and the basis of our profession. Fascinating cases like the Paisley Snail and R v Lipman prompt the law to evolve and adapt to new scenarios, becoming milestones in our profession. They reveal insight into the laws that we take for granted, and how they may have had to be created in the first place.

Whatever your legal case, here at Thomas and Thomas Solicitors we can help. We offer a range of legal services, from conveyancing to probate and criminal law on https://www.thomasandthomassolicitors.co.uk/.

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A guide to civil litigation

Are you facing a legal disagreement or problem? We know that dealing with legal matters can feel overwhelming, especially if you’re not familiar with the world of law. 

In just the first three months of 2023 there were 443,000 civil litigation County Court claims lodged, the highest number for three years according to data from the Civil Justice. 89% of these are money and damages claims, up 8% compared to the same period as last year, while non-money claims are up 10% compared to the same months. But what exactly is civil litigation? 

What is civil litigation?

Civil litigation and civil law is the process of solving legal disagreements between people or businesses using a ‘litigator’. It handles non-criminal conflicts, covering various matters from family and property disputes, arguments over money, and contract breaches. 

A dispute is an umbrella term for issues that result from an unfulfilled task or an expectation that was not met when there was a legal obligation to do so. This can range from anything from unpaid bills to defective products. Litigation is the process of resolving these disputes. 

Furthermore, in civil litigation, one side seeks compensation (usually money) for harm or things that weren’t done as promised (a dispute) by filing a lawsuit with the litigator where the matter can be handled in court. These conflicts can be settled with the help of the litigator in various ways such as through a trial, meetings or through discussions with mediators or arbitrators. 

13 types of civil litigation

Litigation covers a range of areas. Be sure to hire a legal representative that specialises in the relevant practice area because the process may differ depending on the dispute. The most common areas are:-  

  1. Personal injury 
  2. Medical malpractice 
  3. Marital law 
  4. Intellectual property 
  5. Employment and labour 
  6. Educational law 
  7. Tenancy disputes 
  8. Product liability 
  9. Environmental law 
  10. Construction issues 
  11. Real estate 
  12. Anti-trust law 
  13. Worker’s compensation 

              It is important to know that criminal charges are not resolved under civil litigation. As laws are broken, criminal litigation is brought by the state, while civil litigation is a private lawsuit between two parties. 

              Dealing with civil litigation and its process

              Within the jurisdiction of England & Wales, there are five stages to civil litigation that are prescribed by court rules. It’s important to ensure that any litigation matter follows these in this particular order:-  

              • 1.) Pre-action Protocol

                A party’s claim for a dispute must comply with CPR (Civil Procedure Rules). This includes sending a letter of claim to the other party and giving them a chance to respond. Parties are expected to engage and make an effort to resolve the dispute without involving the court, as civil litigation is a last resort. If no resolution is reached then civil litigation action is taken.  
              • 2.) Exchange of Statements

                The claimant issues a Claim Form which sets out their case and states the resolution they seek, such as monetary compensation. Once this is issued by the court, the defendant will have 14 days to file an Acknowledgement of Service. This is called the ‘Defence’. The court will then govern proceedings from this point on.  
              • 3.) Exchange of Evidence

                This is usually the first time that the parties appear before the court. Their representatives should have prepared documents and evidence for disclosure at the upcoming trial. Each party will be required to exchange witness statements under the timetable set out by the court. This can also include the exchange of ‘expert evidence’ – unbiased evidence given by an expert in the dispute’s legal area. 
              • 4.) Trial

                To ensure that both parties can attend the trial, they should have provided dates which they cannot make so that the court chooses a day that works for both sides. During the trial, the court will witness evidence and hear legal submissions. Judgement doesn’t usually happen during the trial. Instead, there will be a second hearing at court later on to announce the decision made.  
              • 5.) Post-Trial

                After judgement is announced, the party that was not in favour will be ordered by the court to fulfil any judgements made within a set period. However, they do have 14 days to appeal for a case review after the dispute was resolved. 

              Do civil cases always go to court?

              Civil litigation is considered a last resort both for the sake of the court’s time as well as the amicable outcome of a private dispute.  This is why the parties must demonstrate that an effort was made to engage and find an ADR – an Alternative Dispute Resolution before the case reaches the courts.  

              Thomas and Thomas Solicitors is a friendly, local law firm that has a unique insight and an inclusive approach to clients with years of experience. With a team of specialists in their specific legal field, the firm offers a range of legal services, including both civil litigation and criminal law.

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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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              A guide to wills and remarriage

              Did you know the most recent ONS government figures on marriage and divorce show that the number of people to remarry in the UK has remained largely the same since 2019? In fact, the number of people to marrying more than once remains quite high. Over 14% of marriages involved both partners remarrying while 17% of newlyweds, a least one of the partners had been previously married. That’s nearly a third of couples (32%) combined where at least one of the partners has been married before.

              Amidst all the excitement of a marriage though, one thing that people often forget to revisit or consider is their will. However, if you want anyone other than your current spouse to inherit the majority of your property when you pass away, making a will after remarrying is essential.

              Our latest blog provides valuable insights into the realm of marriage and estate planning.

              Marriage and inheritance law

              Alarmingly, “recent studies reveal that 59% of UK citizens have yet to create a will, with the number rising to 65% among individuals aged 45 to 54” (source: Legal and General)

              Yet, by creating a will, you can utilise tax planning strategies to reduce the inheritance tax for your beneficiaries. This includes capitalising on exemptions and reliefs like the nil-rate band, residence nil-rate band, and charitable donations.

              This advice is for England and Wales.

              A will also gives you control over who inherits according to how your estate is divided up. Without one, assets are distributed according to intestacy rules. Only married or civil partners and some other close relatives can inherit under the rules of intestacy. Your spouse will get all of your personal property and the first £270,000.00 of your inheritance. (This will change to £322,000.00 on 28th July 2023) More involved processes are employed to decide how your estate will be allocated when its value reaches £270,000.00. You can read more here on ‘Who inherits if someone dies without a will?’’

              What will happen to my will if I remarry?

              For anyone with a will then it’s worth noting that getting remarried nullifies the will. To avoid this happening, before marrying, ensure your will contains a clause from your solicitor that interprets the terms as if you are already married. Making a new will soon after getting married though is advised.

              Assets and second marriage

              Assets involving second or blended families are rarely simple due to the numerous factors that must be considered, such as:

              • The overall wealth of your family
              • Age of any minors involved
              • The age or health of your current spouse or partner
              • Your former partner’s age and health
              • Retirement benefit
              • Other people from whom your children could inherit

              This is why we recommend speaking to a legal representative who can guide you through the process.

              Can children from a previous marriage contest a will?

              The adult children from an earlier marriage may feel betrayed if a will is drafted but does not provide for them, and they may be able to file a claim against the estate for “reasonable provision”.

              “Reasonable provision” is the fair financial arrangement left in a will for those who were financially dependent upon the writer.

              Can a child be excluded from a will in the UK?

              Current inheritance laws would allow your new spouse to inherit all, if not most of your possessions, instead of children from a previous marriage. That is why it is important to make a new will soon after you get married to ensure you are in control of your own inheritance planning.

              Who can help me make a will for my second marriage?

              Thomas and Thomas Solicitors have a dedicated team who specialise in providing professional legal services for wills and inheritance tax matters, and can work through the estate planning process with you, step-by-step, offering a no-obligation discussion.

              With a wealth of experience in handling complex issues related to estate planning, asset protection, and inheritance tax planning, Thomas and Thomas Solicitors are committed to protecting your interests and achieving desired outcomes.

              Blog

              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. 

              Blog

              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

              Blog

              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