Understanding Loss of Capacity Without an LPA

When a loved one’s mental capacity declines, it’s incredibly tough. If they haven’t set up a Lasting Power of Attorney (LPA), the next step often involves the Court of Protection. We frequently discuss this with our clients, so here’s a clear look at the Court’s role and what deputies are responsible for in these sensitive situations.

The Court of Protection

The Court of Protection is a specialist court in England and Wales. It’s dedicated to safeguarding the interests of individuals who struggle to make their own decisions due to mental capacity challenges. This includes overseeing their finances and making choices about their health and living conditions.

The Court plays a vital role. It ensures vulnerable individuals receive necessary support and protection from potential exploitation. Ultimately, the Court aims to empower individuals to live fulfilling lives while upholding their rights and welfare.

Its responsibilities include:

1. Assessing Mental Capacity: The Court first confirms whether an individual genuinely lacks the capacity to make their own decisions. The law presumes they have capacity unless proven otherwise.

2. Making Specific Decisions: The Court can issue orders for immediate, one-off issues where no LPA exists. This might involve approving the sale of a property to cover care costs or consenting to specific medical treatment.

3. Appointing Deputies: This is a primary role of the Court when there’s no LPA. A deputy is appointed if ongoing decisions regarding finances, property, or welfare matters are needed.

4. Overseeing and Supervising: The Court supervises deputies to ensure they always act in the best interests of the individual they represent.

What Are Deputies?

The Court of Protection appoints deputies to make ongoing decisions for individuals who lack mental capacity. Typically, deputies are family members or close friends. However, if no appropriate family member is available or the financial circumstances are intricate, the Court may appoint a professional deputy.

There are two main types of deputies:

1. Property and Financial Affairs: This deputy manages the individual’s money, pays bills, oversees bank accounts, handles investments, and manages property. This is the most common type of deputyship.

2. Personal Welfare: This deputy makes decisions regarding the individual’s healthcare and living arrangements. The Court tends to be more cautious when appointing these deputies. This caution arises because many of these decisions are usually made by medical professionals and family members in accordance with the Mental Capacity Act.

A Deputy’s Important Responsibilities

Being a deputy carries significant responsibility with serious legal duties. All deputies must follow the rules outlined in the Mental Capacity Act 2005.

Deputies must:

1. Act in the Person’s Best Interests: This is the most crucial rule. Every decision a deputy makes must prioritise the best interests of the individual they represent. This involves considering their previous wishes, feelings, beliefs, and values, importantly in conjunction with members and professionals.

2. Encourage Participation: Deputies should promote the person’s involvement in decisions as much as possible, even if their capacity is limited.

3. Keep Good Records: Deputies must keep precise records of all decisions and expenses. These details are included in the annual report submitted to the Office of the Public Guardian (OPG).

4. Keep Finances Separate: A financial deputy must always ensure that the individual’s money and assets are kept entirely distinct from their own.

5. Obtain a Security Bond: Most financial deputies must secure a security bond. This type of insurance protects the person’s assets from any financial errors made by the deputy.

6. Provide Annual Reports: Deputies must submit a yearly report to the OPG, outlining their actions and the individual’s financial situation. The OPG oversees deputies to ensure they fulfil their responsibilities correctly.

Using Professional Deputies

While family members often assume the role of deputy, a professional deputy can sometimes be a more suitable choice. This may be due to the following reasons:

1. The person’s finances are very complicated (for example, they’ve received a large sum from a personal injury claim).
2. There’s no suitable family member available or willing to be a deputy.
3. Family disagreements could make managing affairs difficult.

Furthermore, professional deputies, often solicitors, offer an impartial, knowledgeable, and experienced approach. They are regulated and held to high standards, ensuring decisions are always made purely in the individual’s best interests, without personal bias.

Our Advice

Dealing with a loved one losing capacity is challenging, especially without a Lasting Power of Attorney (LPA). Our firm offers compassionate legal guidance to families. Our specialist lawyers can help you explore your options, whether applying to become a deputy, assisting with deputy duties, or advising on the Court of Protection’s role in safeguarding your loved one.

Please contact us if you are concerned about a loved one’s capacity or lack of an LPA. We’re here to help.

Beyond The Show Home

Essential Tips for Buying a New-Build Property

Purchasing a new-build home presents a world of exciting possibilities, from selecting your ideal decor to being the very first occupant and enjoying the peace of mind that comes with fewer immediate repair concerns and lower maintenance costs. However, navigating the new-build market does pose some unique considerations for the buyer.

Buying Off-Plan or In-Construction

The allure of buying a new build off-plan can be significant. Seeing your chosen plot evolve from outline site plans to reality is exciting. Yet, it’s crucial to remember that plot location, finish, and even size variations can occur.

Only when the developer has completed the property, or it is at an advanced stage of construction, can you see these features on site. You can ascertain what furniture will fit, whether the outdoor space meets your expectations, and so forth. Thus, remember, when purchasing off-plan, to thoroughly review the property’s specifications and ensure they align with your current and future needs. For instance, are you planning to expand your family, or are you nearing retirement and the property may seem too spacious in a few years?

Additionally, consider envisioning the surrounding facilities and the overall mix of properties within the development. It is crucial to research the developer online. Independent reviews are an excellent starting point, and be sure to examine the Home Builders Federation New Homes survey results. Finally, request a realistic completion date for the entire development from the developers. If construction persists for an extended period after you move in, be prepared for the realities of living on an active building site.

Conveying a Newly Built Property

New-build properties frequently involve extra considerations, such as ensuring compliance with building regulations, verifying construction quality, reviewing warranty terms, and examining agreements with the builder or developer.

Completion dates can be more unpredictable because construction timelines frequently encounter delays. This affects the scheduling of the conveyancing process, necessitating careful negotiation and planning to coordinate the property’s legal and practical completion.

New-build properties frequently incur extra fees, like infrastructure charges and amenity contributions, all of which need careful consideration during conveyancing.

Overall, new build conveyancing requires a more comprehensive examination of legal documents, stringent compliance checks, and heightened awareness of issues specific to newly constructed properties. This results in a more intricate and nuanced process than conveyancing for an existing home.

Decoding Your Buyer’s Contract

You must dedicate ample time to read and thoroughly understand your buyer’s contract. This document may contain crucial clauses that could affect your financial obligations and restrict future alterations to your property or its grounds. Ensure you check the following:

1. Shared Facility Charges

You may need to contribute a service charge towards the upkeep of shared facilities, such as communal gardens or private roads. The developer must disclose these charges, and your legal documents should clearly outline them. Ensure you are fully aware of these potential additional costs, as you will need to factor them into your ongoing budget.

2. Type of Tenure

The tenure of your new home is a vital consideration. If your property is leasehold, you will likely be responsible for ground rent and a service charge. Leasehold status also generally means you will need consent from the landlord or management company before making significant alterations or subletting your home. Again, ensure you have thoroughly budgeted for these ongoing costs of ownership.

3. Drains, Sewers, and Roads

For new builds, the developer usually constructs the infrastructure serving the property, including roads, drains, and sewers. After a specified period, the Local Highways Authority and Water Authority should “adopt” responsibility for maintaining new roads or sewers, unless the contract stipulates otherwise.

An experienced lawyer plays a crucial role in ensuring that the necessary agreements are in place for this adoption and that they allocate funds to cover the cost of works should the developer cease trading. Without appropriate contracts, you, as the buyer, may be liable for maintenance costs until adoption. If the contract explicitly states that these services will remain private, you must be fully aware of the potential cost implications and liabilities involved.

Choosing the Right Ownership Structure

If you are purchasing your new build home with a partner or spouse, it’s essential to communicate this to your solicitor. They can then advise on the most suitable ownership structure: joint tenants or tenants in common. The documentation submitted to the Land Registry to register your ownership will reflect this choice.

1. Joint Tenant

Often chosen by married couples or cohabiting couples, this structure means both parties own the property in equal shares. Upon the death of one owner, their share automatically passes to the surviving owner(s), regardless of any Will provisions.

2. Tenants in Common

This option allows for unequal shares of ownership, which can be important if contributions to the purchase price vary. Importantly, with tenants in common, you can bequeath your share of the property to beneficiaries under your Will. 

Our Advice

Purchasing a new property is often the ideal (and exciting) choice. While the process can be complex, if you engage the support of an experienced legal professional, they will assist you in resolving any issues, meeting your lender’s requirements, and keeping your purchase on track. Please contact us if you’re looking for legal advice on your new-build purchase. We’re here to help.

The Case of Liam Payne and the Perils of Intestacy

Who Decides Your Legacy?

The recent and untimely death of Liam Payne serves as a powerful reminder of how fragile life can be and just how important it is to have a Will in place. Despite his enormous success and public fame, Liam sadly passed away without a valid Will, leaving an estate valued at over £ 24.3m. While close family, friends and fans mourn his loss, this tragedy also highlights something many people, regardless of fame or fortune, often overlook: the necessity of having a Will.

It’s easy to think that Will writing is only for the wealthy with sprawling estates. However, the truth is that having a valid Will is one of the most important things you can do to protect your loved ones, no matter the size of your assets. Dying without one, known legally as dying intestate, can create significant complications, stress, and even financial hardship for those left behind during an already challenging time.

Understanding Intestacy Rules: A Rigid Framework

In the UK, the intestacy rules determine how assets are shared when someone dies without a Will. In Liam’s case, the intestacy rules determined that his son would be the primary beneficiary. However, not having a Will likely created confusion (and great responsibility) for those close to him and those he might have wanted to provide for. Take his partner, Kate Cassidy. As an unmarried partner, the intestacy rules provide her with no automatic inheritance, regardless of the duration or depth of their relationship or any future plans. This situation could leave her vulnerable and starkly illustrates how the law often fails to reflect the complexities of modern relationships and individual wishes.

The Confusion and Challenges for Those Left Behind

The absence of a Will inevitably creates confusion and significant challenges, particularly for those who aren’t automatically recognised under the intestacy rules, such as unmarried partners. Unlike spouses or civil partners, they don’t have a legal right to inherit. Instead, because the intestacy rules don’t automatically provide for unmarried partners, they face the complex task of proving their eligibility to claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act).

This process can involve tricky legal discussions and sharing sensitive personal information, all while they are trying to cope with their loss. Navigating this process can prove costly and time-consuming, adding significant stress during an already heartbreaking period.

Furthermore, legal fees can drain their resources, leaving them financially vulnerable despite their close relationship with the deceased. The emotional strain of dealing with legal matters while grieving can be overwhelming; it forces them to fight for recognition and security at a time when they feel most vulnerable. And unfortunately, there’s no certainty about how an Inheritance Act claim will turn out, which can lead to even more heartache.

The Administrative Chaos

The absence of a Will creates further chaos for everyone trying to handle the estate. In Liam’s case, papers from the Court of Protection revealed his former partner and mother of his son Bear, Cheryl Tweedy and music industry lawyer Richard Mark Bray have been given a limited grant of representation until a general grant is made. Undoubtedly, this complicates and makes the management of the estate more time-consuming. Dealing with an intestate estate often results in higher legal costs due to the additional administrative work involved. Additionally, no clear guidelines exist about personal matters like funeral arrangements, specific gifts for loved ones, or charitable donations. This lack of clarity can lead to disagreements among family and friends already dealing with grief.

Why a Will Matters for Everyone

It’s clear to see from Liam Payne’s untimely death why drafting a Will is crucial for everyone, regardless of their net worth:

• Control Over Your Legacy: A Will allows you to explicitly state who you wish to inherit your assets, avoiding the rigid framework of intestacy and the uncertainty of potential claims.
• Protection for Unmarried Partners: A Will is the only way to ensure an unmarried partner is financially provided for, as they have no automatic rights under intestacy.
• Addressing Potential Dependencies: A Will allows you to make provisions for individuals who may be financially dependent on you, regardless of their legal relationship.
• Guardianship of Children: A Will remains the definitive way to appoint guardians for minor children.
• Streamlining the Legal Process: A valid Will generally leads to a smoother and less costly probate process compared to the complexities of intestacy and potential Inheritance Act claims.
• Mitigating Inheritance Tax: A well-structured Will can incorporate strategies to minimise or even reduce the amount of Inheritance Tax payable on your estate, ultimately preserving more of your wealth for your beneficiaries. Dying intestate means this opportunity for proactive tax planning is lost. 

Our Advice

Liam Payne’s death is a tragedy. But his situation is not uncommon. Other notable celebrities who died without a Will include Prince, Jimi Hendrix, Amy Winehouse, Pablo Picasso, and James Dean. Unfortunately, they left more than just their fame behind. Aside from their wealth, they provoked bitter family arguments, avoidable taxes, and numerous costly lawsuits.

Making a Will is rarely a task people are keen to sort out. Confronting family issues, thinking about the inevitable or worrying about the cost make the process seem unappealing. However, a properly drawn-up Will provides security and peace of mind for everyone you care about. You will be relieved knowing your affairs are in order and you have appointed someone you trust as your executor.

Please contact us for further information, advice from our specialist team, or an idea of the costs involved in making a Will. We’re here to help.

Generation Skip. Can Will Variations Help?

Losing a loved one is a profoundly emotional experience. As you navigate the practicalities that follow, you might be surprised to learn that even after someone makes a Will, there’s a mechanism that allows its terms to be altered. This is a Deed of Variation, and beneficiaries can use it as a powerful tool to redirect their inheritance for various reasons, including tax planning and facilitating generational skipping.

For many, the initial distribution outlined in a Will might not be the most suitable outcome for those who survive. Perhaps circumstances have changed significantly since someone drafted the Will, or a legacy may benefit future generations sooner and more significantly. Whatever the reason, a Deed of Variation offers a legitimate and effective way to reshape an inheritance within a specific timeframe.

What is a Deed of Variation?

In essence, a Deed of Variation is a legally binding document that allows beneficiaries of a Will (or those entitled under the rules of intestacy if no Will exists) to change who inherits what from the deceased’s estate. It essentially rewrites the Will in part, as if the deceased had made those changes themselves before passing away.

The Golden Window: Two Years Post-Death

Crucially, you must execute a Deed of Variation within two years of death. This time limit is critical for its legal validity and potential tax benefits.

Why Draft a Deed of Variation?

A Deed of Variation offers beneficiaries valuable opportunities to reshape the distribution of an estate. For parents, it provides a route to pass on their inheritance directly to their children in a tax-efficient manner, treating the gift as if it were originally theirs and potentially shielding it from inheritance tax on the parent’s death. Beyond direct gifts, it allows for the creation of trusts, granting greater control and flexibility in how someone manages assets for future generations.

Beneficiaries can also leverage a Deed of Variation to support causes they care about by redirecting assets to charity, which can simultaneously reduce the inheritance tax that the estate pays.

Furthermore, this legal instrument can be a powerful tool for resolving family issues arising from a Will. If the Will has unintentionally left someone out, existing beneficiaries can use a Deed of Variation to include them, offering a way to avoid costly and emotionally draining legal battles.

Important Considerations

While a Deed of Variation offers significant flexibility, it’s essential to be aware of the following:

1. The terms are legally binding once you execute the deed, and you can’t easily reverse them.
2. While people often use variations for tax planning, it’s crucial to understand all the potential tax implications of a variation, including Income and Capital Gains taxes. Expert legal and financial advice is essential.
3. A Deed of Variation is a complex legal document that someone must draft correctly and execute properly to be valid.
4. It may not be possible to vary a Will or intestacy rules due to the circumstances of the parties, this may be due to age, disability, benefits, bankruptcy, etc
5. It is important to check whose consent is required for a variation.

Our Advice

Navigating the complexities of will variations and their implications can be challenging. Everyone’s circumstances are different. However, please contact us if you need further information or advice about an inheritance or making a Will. We are here to help.

Achieving a Stress-Free Property Move

Buying or selling a house is a thrilling prospect, but let’s be honest, it can also feel a little daunting. Navigating the legalities and potential pitfalls can add unnecessary stress to what should be an exciting time. The good news is, whether you’re taking your first step onto the property ladder or moving onto a new chapter, there are proactive steps you can take to ensure a smoother, more stress-free move.

Tips for a Smooth Transaction

Buyers 

• Get Your Finances in Order: Secure a mortgage pre-approval before browsing properties. This shows sellers you’re serious and financially ready.
• Do Your Homework: research local market values using platforms like Rightmove and Zoopla to avoid overpaying.
• Assemble Your Dream Team: Work with a proactive estate agent and experienced property lawyer to safeguard your interests. 

Sellers 

• Be Prepared: Gather essential documents, such as title deeds and surveys, to speed up the buyer’s due diligence and prevent delays.
• Price it right: Collaborate with your estate agent to set a realistic asking price to attract buyers.
• Honesty is Key: Disclose known property defects or potential issues to avoid disputes and build trust with potential buyers. 

Navigating Offers and Negotiations

Buyers 

• Make a clear offer detailing the purchase price and conditions.
• Negotiate for a fair price while aiming for a mutually agreeable outcome.
• Arrange for thorough property inspections and legal checks.

Sellers

• Review all offers, prioritising buyers with strong financial backing.
• Communicate your decision clearly, whether accepting or countering offers. 

Closing the Deal

Before finalising the sale, your property lawyer will review all legal documentation to protect your interests and identify potential issues.

Budget for the costs involved in buying or selling a property. These include mortgage or loan fees, valuation and surveyor’s fees, property tax (like Stamp Duty Land Tax), estate agent fees, removal costs, and legal fees. Request transparent cost breakdowns from all professionals involved.

Key Points to Remember for a Stress-Free Move

1. Communicate clearly with all parties.
2. Pay attention to detail when reviewing documents.
3. Take the time to understand all legal documents before signing.

Our Advice

Engaging a specialist property lawyer is essential in the UK’s complex property market. Their expertise can save time, money, and stress. By seeking professional guidance and following these steps, you can confidently navigate the property market and look forward to a smooth transition into your new home.

Please contact us if you would like to talk to one of our property team members or receive a quote for your conveyancing. We’re here to help.

Refusing an Inheritance

Understanding Disclaimers

The recent court case, White v Williams [2025] EWHC 115 (Ch), has highlighted a common problem in dealing with Wills: what happens when someone doesn’t want their inheritance? This case, involving the estate of the late Elfed Williams, highlights the potential for ambiguity and dispute when informal communications are relied upon to establish a beneficiary’s intention to renounce their entitlement.

White v Williams [2025] EWHC 115 (Ch)

A Son’s Unclear Intentions

Elfed Williams passed away on June 11, 2023, leaving behind an estate that became the subject of contention. David Leslie White, acting as the sole executor, found himself in a predicament regarding the distribution of the estate. The core issue stemmed from alleged informal disclaimers by Keith Elfed Williams, the deceased’s only son.

The executor, Mr. White, initiated a Part 8 claim in the High Court, seeking directions on how to proceed with the estate’s distribution. The root of the problem was that Keith Williams, estranged from his father, had engaged in various informal communications that suggested he wished to disclaim his inheritance. However, these communications lacked the formality typically required for a valid legal disclaimer, which led to the legal ambiguity that the courts were asked to resolve.

What is a Disclaimer?

In legal terms, a disclaimer is when someone officially refuses a gift they’ve been left in a Will. Someone can refuse a gift left in a Will, but they must do so before accepting any part. However, it must be clear, definite, and done within a reasonable time. If done correctly, it’s as if the person died before the testator (the person whose Will it is), which changes the estate’s distribution.

It’s important to know that simply saying “I’m not sure” or “maybe not” isn’t enough. It must be a clear “no.” Also, you can’t change your mind after taking something from the inheritance. That’s why acting quickly is crucial.

Why the Executor Sought Direction from the Court

Elfed’s Will included a clause (known as a substitution clause) that allowed the executor to redistribute any ‘failed’ gifts. This is a common practice in Will drafting. A gift usually fails if the named beneficiary dies before the person whose Will it is. However, in this case, the issue centred on whether Keith’s refusal to accept his father’s gift amounted to the failure of that gift.

Ruling

The court held that the natural and ordinary meaning of the word “fails” in the Will’s substitution clause extended to Keith’s (informal) disclaimer, even though it occurred before Keith’s death.

Our Advice

This case serves as a reminder that clarity and formality are crucial when creating Wills. Disputes – big or small – come at a high cost. Emotionally and financially. The legal fees incurred during this case reduced the final distribution to the beneficiaries. In the end, avoiding legal challenges through precise documentation and professional guidance helps ensure that the intended beneficiaries receive the maximum benefit from the estate. So, please don’t hesitate to contact us if you need legal advice regarding Wills or estate planning. We’re here to help.

Unpacking the Government’s Commonhold Revolution

What the White Paper Means for You

The Government’s recently released white paper outlining significant reforms to commonhold ownership signalled its intention to move forward with legislation as quickly as possible. The reforms aim to empower leaseholders and provide a viable alternative to the often-problematic leasehold system. This move sparked considerable discussion within the property sector. Since there are few commonhold developments, the structure generally confuses many purchasers and lenders. Here, we outline the key proposals, explain potential pros and cons and what the proposals are likely to mean in practice.

What is Commonhold?

For those unfamiliar with the term, commonhold is a form of freehold ownership in which individuals own their flats and share ownership of the building’s communal areas. This differs from the more common leasehold structure, where a leaseholder effectively rents the property for a fixed term. This structure eliminates the concept of a landlord and lease, instead transferring control to the residents through a Commonhold Association.

Key Proposals of the Government’s White Paper

The white paper will form the basis of a draft leasehold reform bill expected later this year. The proposed changes are designed to make commonhold a more attractive and accessible option. They include:

1. Revitalising Commonhold: The reforms aim to make it easier for developers to create commonhold properties and for existing leaseholders to convert to commonhold.

2. Improving the Existing Commonhold Model: Proposals include simplifying the current legal framework and addressing issues that have hindered its uptake in the past.

3. Empowering Commonhold Associations: The proposals seek to strengthen the role of Commonhold Associations and ensure they are well-equipped to manage their buildings effectively.

4. Addressing Existing Leasehold Issues: While the focus is on promoting commonhold, the white paper also discusses leasehold reforms, such as capping ground rents and simplifying lease extensions.

Advantages of Commonhold

The Government believes the new proposals will make commonhold the default tenure for new flats, providing homeowners with greater control and autonomy over their properties. While also ensuring robust property maintenance plans and mandatory reserve funds. With Commonhold Associations operating openly, it’s believed that the new structure will promote transparency and fairness, allowing all owners to participate in decision-making. Furthermore, commonhold properties will likely increase in value due to rising desirability. Finally, a commonhold structure eliminates the burden of ground rent payments, resulting in significant financial savings.

Disadvantages and Potential Challenges

The white paper highlights the complexity of the current commonhold model. It also notes the need for unanimous consent, often leading to lengthy and costly processes. As a result, unless the process is modified, developers may hesitate to adopt commonhold, citing perceived complexities and financial risks. Furthermore, the potential for owner disputes necessitates robust dispute resolution mechanisms, the details of which are currently unclear. Finally, lenders will need to adapt their lending policies to accommodate the expansion of the commonhold market.

Our Advice

The white paper marks a significant step toward reforming the UK’s property ownership landscape. However, the successful implementation of these reforms relies on the Government’s ability to address the significant potential challenges effectively.

The first draft of The Leasehold and Commonhold Reform Bill is due towards the end of 2025. Based on what has appeared in this month’s white paper, it remains to be seen whether developers, lenders and consumers will be firmly convinced commonhold is the way forward. Please contact us if you need further information or advice about any property-related matter. We’re here to help.

The Unforeseen Reality of Intestacy

Dying Without a Will

We often hear about the importance of having a Will, but what happens when life takes an unexpected turn and there isn’t one? It’s a scenario far more common than many realise. Here, the law steps in, but its framework—known as the rules of intestacy—can lead to outcomes that might surprise you.

The absence of a Will can significantly complicate the estate administration process and transform a period of mourning into a period of complex legal administration for the deceased’s family. In England and Wales, the Administration of Estates Act 1925, updated by the Inheritance and Trustees’ Powers Act 2014, dictates how the estate is divided. While these rules aim for fairness, they operate within a set structure that doesn’t always reflect the nuanced realities of modern families.

Modern Families, Complex Rules and Rising Disputes

Think of blended families, for instance. Remarriage and stepchildren introduce complexities that the straightforward intestacy rules struggle to address. Without a Will, children from previous relationships might find themselves unintentionally excluded, leading to painful disputes. It’s not just about spouses and children. Financial dependents who rely on the deceased may also find themselves in a precarious position, needing to invoke the Inheritance (Provision for Family and Dependants) Act 1975. In Scotland, ‘prior rights’ for surviving spouses or partners add another layer of intricacy.

Critically, the rise in these complex familial situations, coupled with the sheer number of individuals dying intestate, is a significant contributing factor to the increasing prevalence of inheritance disputes in the UK. The rigidity of the intestacy rules, designed for simpler family structures, often fails to accommodate the nuanced relationships of today, creating fertile ground for disagreements and legal challenges.

Probate Without a Plan

Now, consider the practicalities of administering an estate without a Will. The process, known as probate, becomes far more involved. Identifying and locating beneficiaries can become a detective-like pursuit, especially in families with distant relatives or complex histories. The estate administrator, typically a close family member, must secure a Grant of Letters of Administration, a legal document essential for managing the estate. This is not a simple form-filling exercise; it often requires meticulous attention to detail and a thorough understanding of legal procedures.

Dealing with Missing Beneficiaries

One of the most challenging aspects is the potential for missing beneficiaries. After the estate has been distributed, imagine discovering that a long-lost relative has a legitimate claim. This is where specialist ‘Missing Beneficiary’ insurance becomes invaluable, offering protection against unforeseen financial liabilities. If insurance isn’t an option, the administrator may need to seek court approval for distribution or pay the court any amounts due to a missing beneficiary. This process is both time-consuming and costly.

A Second Chance? Redistributing Assets Through a Notional Will

While the intestacy rules provide a default framework for estate distribution, there’s a provision that allows beneficiaries to alter the outcome. Within two years of the deceased’s death, those entitled to inherit can execute a Deed of Variation. This is a legal instrument that effectively redirects the inheritance. This process, sometimes called a ‘notional Will,’ offers a valuable opportunity to accommodate changing family circumstances.

The key to a successful Deed of Variation lies in unanimous agreement. All beneficiaries who stand to inherit under the intestacy rules must consent to the proposed changes. This requirement underscores the importance of open communication and a shared understanding of the family’s wishes. Legal guidance is crucial to ensure the Deed of Variation is drafted correctly and complies with all relevant legal and tax implications.

Our Advice

Ultimately, the best way to safeguard your wishes and protect your loved ones is to create a well-crafted Will. A Will is not just about distributing assets; it’s about providing clarity and peace of mind. It minimises the risk of family disputes, reduces stress during a difficult time, and ensures your assets are distributed according to your intentions. If you’re considering your estate planning options, don’t hesitate to contact our specialist team. We understand these matters can be sensitive and complex, and we are here to help.

The Alarming Rise of Property Fraud

Is Your Home at Risk?

The dream of homeownership is a cornerstone of British life. But what if that dream turned into a nightmare, not through leaky pipes or noisy neighbours, but through the insidious and devastating crime of property fraud? Sadly, this is a growing reality in the UK. So, homeowners need to be aware of the risks. Taking proactive steps can help protect your most valuable asset.

The Silent Thief

Property fraud involves criminals attempting to transfer ownership illegally. It often occurs through identity theft, where fraudsters impersonate homeowners and use stolen information to forge documents. They might also create fake title deeds or target empty properties, assuming a lack of quick detection. Another tactic involves mortgage fraud. Criminals take out fraudulent mortgages on the property and leave the homeowner with the debt.

Why the Rise?

Several factors drive the increase in property fraud. Criminals are becoming more sophisticated, leveraging technology and exploiting vulnerabilities. The digitisation of the Land Registry, while intended to streamline processes, also creates new opportunities for digital fraud. Economic pressures can also lead to desperate measures, driving individuals to commit such crimes.

The Devastating Consequences

Property fraud can have a catastrophic impact on individuals. Homeowners may lose their property entirely, facing the nightmare of a fraudulent transfer. Financial ruin can follow, with substantial debts and legal fees incurred while attempting to reclaim their assets. Such crimes cause immense and long-lasting emotional distress. Between 2009 and 2023, HM Land Registry prevented more than £340 million of property fraud. This clearly demonstrates the significant financial scale of these criminal attempts.

Practical Steps to Protecting Your Property

Here’s how to safeguard your property:

1. Register with HM Land Registry’s Property Alert Service to receive email alerts on property activity. There are currently more than 770,000 active property alert accounts across England and Wales, which shows growing awareness.
2. Keep Your Contact Details Up to Date: Ensure Land Registry can reach you.
3. Regularly Check Your Credit Report: Monitor for unusual financial activity.
4. Be Vigilant About Your Mail: Don’t let mail accumulate; watch for suspicious items.
5. Secure Your Identity: Protect personal information.
6. Consider a Restriction on Your Property Title: Add a layer of security.
7. Insure against fraud: Explore relevant home insurance options.
8. Seek Legal Advice: Get expert guidance from a property lawyer.

What to Do If You Suspect Fraud

If you suspect you’re a victim, immediately contact HM Land Registry to report the suspected fraud. Report the crime to Action Fraud, the UK’s national reporting centre. Seek legal advice from a solicitor specialising in property fraud to protect your rights and pursue recovery.

Our Advice

Your peace of mind is our priority. Our experienced property specialists provide expert advice and guidance on preventing and addressing property fraud. As a frontline safeguard in property transactions, we conduct robust anti-money laundering checks, verifying client identities and scrutinising transaction details to provide essential protection. Contact us today for a confidential consultation. We’re here to help.

Switching from Joint Tenants to Tenants in Common

Usually, couples who buy a house together do so as joint tenants. This means they both own the whole property, and ownership automatically transfers to the survivor when one dies.

However, circumstances may lead couples to consider changing ownership to ‘tenants in common’. And how you hold a property can have significant legal and financial implications. So, if you’re contemplating this change, it’s essential to understand the key differences between these ownership structures and the steps involved.

Understanding the Basics: Joint Tenants vs. Tenants in Common

Joint tenancy, commonly preferred by couples, means that all joint tenants hold the entire property equally. A crucial feature of this arrangement is the “right of survivorship.” This means that if one joint tenant passes away, their share automatically transfers to the surviving joint tenant(s), regardless of any will. As a result, you cannot leave your share of the property to someone else through your will.

In contrast, tenants in common allows each tenant to hold a distinct share of the property, which does not have to be equal among owners. There is no right of survivorship, enabling each tenant to designate how their share is distributed according to their will. This arrangement is often preferred by unmarried couples, friends, or family members who may have contributed different amounts to the property purchase or wish to pass on their share to specific beneficiaries.

Reasons to Switch to Tenants in Common

There are several compelling reasons to consider changing from joint tenancy to tenants in common.

1. Proportional Ownership: If you contributed a larger portion of the purchase price, you can reflect this contribution by holding a more significant percentage as a tenant in common.

2. Estate Planning: You may wish to leave your share of the property to someone other than the co-owner(s), such as children from a previous relationship.

3. Flexibility for Inheritance Tax Planning: This structure can offer enhanced options for managing inheritance tax.

4. Relationship Changes: In cases of separation, you may prefer a clear division of assets, which can be easily achieved through tenants in common.

5. Business Assets: Properties that serve as business assets are often held as tenants in common.

Severing a Joint Tenancy

To change from joint tenancy to tenants in common, you must “sever” the joint tenancy. There are several ways to sever a joint tenancy, including:

• Written Notice: Serve a written notice to the other joint tenant(s) indicating your intention to sever the tenancy. Ensure that you serve the notice properly and keep evidence of service.

• Mutual Agreement: The most straightforward method of severing the tenancy is for all joint tenants to agree in writing to do so.

• Specific Actions: Certain actions, such as selling or mortgaging your share, may also automatically sever the tenancy.

• Court Order: A court order may be necessary if disputes arise.

After severance, it’s crucial to register the change with the Land Registry to update the property’s title. This involves completing the SEV form and providing the relevant supporting documentation.

What if Someone Disagrees?

Even if one joint tenant disagrees, they have the legal right to sever the joint tenancy by giving all joint tenants a written notice clearly stating their intention. As documentation, retain proof of service, such as a recorded delivery receipt. You will also need to notify the Land Registry of the change in ownership.

Our Advice

While severing a joint tenancy yourself is possible, we strongly recommend seeking professional legal advice. Both ownership arrangements have risks and benefits, which a qualified lawyer will ensure you understand before making any decisions. If you are considering severing your joint tenancy, contact us today. We’re here to help.

Tying the Knot and Tying Up Loose Ends

Inheritance Tax and Your Spouse or Civil Partner

For many couples, marriage or civil partnership celebrates love and commitment. However, beyond this emotional bond, we often overlook vital legal and financial implications, especially inheritance tax (IHT). Understanding these implications is essential for ensuring your assets pass to loved ones as you wish and for easing potential financial burdens during difficult times.

Clients often remain unaware of the significant IHT benefits available to married couples and civil partners. Let’s explore why “I do” truly matters.

Valuable Spousal Exemption

The “spousal exemption” lies at the heart of IHT advantages for married couples and civil partners. Here’s how it helps:

1. No IHT on Transfers: When one partner dies, any assets left to the surviving spouse or civil partner are generally exempt from IHT, regardless of value.

2. Transferable Nil Rate Band (NRB): If you don’t fully use your NRB (currently £325,000) when you die, you can transfer the unused portion to your surviving spouse or civil partner. This effectively doubles their NRB to £650,000.

3. Residence Nil Rate Band (RNRB): If you own your home and plan to leave it to direct descendants, you may qualify for the RNRB. You can also transfer this allowance to your surviving spouse or civil partner, potentially adding another £175,000, doubling to £350,000 if unused. 

Why This Matters

Unmarried partners face a 40% IHT on assets exceeding the individual NRB without the spousal exemption and transferable allowances. This profoundly impacts loved ones. As consumer advocate Martin Lewis stated, “Death is where marriage really counts.” His words highlight the financial security marriage or civil partnership provides.

Examples in Practice

Consider “Alex” and “Beth,” who have lived together for 20 years and have combined assets of £950,000. If Alex dies, their situation unfolds as follows:

Married or in a Civil Partnership

Because of the spousal exemption, Beth inherits Alex’s share of assets without immediate IHT liability. When Beth dies, her estate benefits from Alex’s unused NRB, allowing a combined £650,000 to pass tax-free. If they leave their home to direct descendants, they can combine their RNRBs for an additional £350,000. With thoughtful planning, they pass £1,000,000 without IHT.

Co-habiting or Unmarried

As a cohabitee, if Alex’s assets are £475,000, his estate faces IHT:

£475,000 – £325,000 (NRB) = £150,000.

£150,000 x 40% (IHT rate) = £60,000.

Beth receives £60,000 less than if they were married. She cannot access Alex’s unused NRB, so only her own NRB applies when she dies. This results in a £60,000 tax on the first death, avoidable through marriage, and potential further tax when Beth dies.

As Alex and Beth’s example illustrates, the financial consequences of being unmarried can be significant, highlighting the need to consider whether the current inheritance tax framework is out of step with modern relationships. Many couples choose not to marry, yet they are significantly disadvantaged regarding inheritance tax. This raises questions about the fairness of a system that prioritises marital status. As societal norms evolve, whether the law will adapt to reflect modern partnerships remains to be seen.

Our Advice

Navigating the world of inheritance tax can feel overwhelming, especially during emotionally charged times. While the spousal exemption offers significant financial protection for married couples and civil partners, proactive estate planning can significantly mitigate potential burdens for cohabitees.

Crafting a comprehensive Will is essential for everyone. However, alongside exploring a cohabitation agreement, a professionally drafted Will can solidify financial rights for couples who choose not to marry. Furthermore, utilising trusts offers a strategic approach to asset management, potentially reducing tax liabilities. Lifetime gifts (mindful of the seven-year rule) can further diminish estate value. Life insurance policies written in trust provide a financial safety net for surviving partners, and carefully considering joint property ownership is also vital.

Careful estate planning (including regular reviews) is crucial for everyone, regardless of marital status. Don’t leave your family’s future to chance. Please contact us if you have any questions about making a Will, IHT or any other aspect of estate planning. We’re here to help.

Choose Your Executors Wisely

An Executor’s Responsibility is Not to be Taken Lightly

Planning for the future is never easy, but it’s crucial to ensure your wishes are respected and your loved ones are protected. A key part of this planning involves appointing executors in your Will. Executors are responsible for administering your estate after you’re gone, which requires careful consideration. Choosing the right individuals is vital. Here, we explore some crucial aspects, including the implications of an executor losing mental capacity and the importance of appointing alternate executors.

The Role of an Executor

Executors manage your estate after your death. They are responsible for identifying and valuing your assets, from property and bank accounts to investments and personal possessions. They also pay any outstanding debts and ensure all taxes are paid. Finally, they distribute your assets to the beneficiaries you’ve named in your Will. This often involves dealing with legal matters, such as probate applications, potentially handling family arguments, and working with solicitors and other professionals.

Why Choosing Carefully Matters

The role of an executor is complex and time-consuming. It requires a high degree of organisation, financial acumen, and impartiality. Choosing someone unsuitable can lead to delays, disputes, and even financial mismanagement. You need someone you trust implicitly, who is capable and willing to take on the responsibility.

The Risk of an Executor Losing Capacity or Passing Away

Life is unpredictable. What happens if an executor you’ve appointed loses mental capacity due to illness or injury or passes away before or during the administration of your estate?  Either situation can create significant complications.

Loss of Capacity: If an executor loses capacity before the court grants probate, they can no longer legally act. The remaining executor(s) can continue. If there are no other executors, your family may need to apply to the Court of Protection to appoint someone to act as an administrator. This can be a lengthy and costly process. The same is true if an executor loses capacity after the court grants probate – the remaining executor(s) can continue, but otherwise, an application to the Court of Protection may be required. If an executor loses capacity before you die, you should choose another executor and amend your Will as soon as possible.

Passing Away:  If an executor dies, similar issues arise. Before probate, the remaining executor(s) can continue.  If there are no remaining executors, an application for letters of administration (essentially taking on the role of an administrator) is required. After probate, the remaining executor(s) continue.  Again, if no other executors remain, an application for letters of administration may be necessary.  If an executor passes away before you die, you should choose another executor and amend your Will as soon as possible.

The Importance of Alternate Executors

This is where the crucial role of alternate executors comes in. Appointing alternate executors in your Will is essential. You nominate individuals to step in if your primary executor(s) are unable or unwilling to act for any reason, including loss of capacity, death, illness, or simply a change of mind. Having alternate executors in place provides a safety net and helps ensure a smooth administration of your estate.

Choosing the Right People

Trustworthiness is paramount when choosing your executors and alternates. You need someone you absolutely trust to act in your best interests and the interests of your beneficiaries. Consider their capacity – are they mentally and physically capable of handling the responsibilities? Have you discussed the role with them? Being an executor is a significant commitment, and they must be willing to take it on. Can they act impartially, especially if there are complex family dynamics? While not always essential, having executors located relatively nearby can be helpful for practical reasons.

Review Your Will Regularly

It’s vital to review your Will regularly, especially if there are significant changes in your life, such as births, deaths, marriages, or financial circumstances. You should revisit your choice of executors and alternates during this review to ensure they are still appropriate and willing to act.

Our Advice

Drafting a Will and choosing executors are complex legal matters. We advise you to talk to an experienced lawyer specialising in Wills and probate. They can guide you through the process, ensuring your Will is legally sound, and your wishes are properly documented. Don’t gamble with these crucial decisions; make a plan.

For more information, please contact us today. We’re here to help.

 

Why You Need Lasting Powers of Attorney, Whatever Your Age

It’s easy to think serious illnesses or accidents only happen to others. But unexpected events can occur at any age, potentially leaving us unable to make decisions for ourselves. This is where Lasting Powers of Attorney (LPAs) become essential, and everyone, regardless of age, should consider them.

LPAs aren’t just for older individuals; impairment can occur unexpectedly. A sudden illness or serious accident can leave someone temporarily or permanently unable to manage their affairs. Planning ahead with an LPA safeguards your interests and those of your loved ones. 

Understanding the Two Types of LPA

A Lasting Power of Attorney is a legal document allowing you to appoint someone you trust (your “attorney”) to make decisions on your behalf if you cannot do so yourself.  Crucially, there are two types of LPA, and it’s essential to understand the difference:

1. Property and Financial Affairs LPA. This type of LPA allows your attorney to make decisions about your finances and property, such as paying bills, managing your bank accounts, selling your house, or handling your investments. With your permission, this LPA can be used even while you still have capacity.

2. Health and Welfare LPA. This LPA allows your attorney to decide about your health and welfare, such as consenting to or refusing medical treatment, deciding where you should live, and making choices about your daily care. This LPA can only be used once you have lost capacity. 

Why LPAs are Essential

Unexpected Financial Burden: If you are hospitalised and unable to manage your finances, your partner might lack the legal right to access your accounts, leading to missed payments and debts. A Property & Financial Affairs LPA would prevent this. 

Risks for Business Owners: A business owner’s incapacity could halt operations. A Property & Financial Affairs LPA allows appointed attorneys to manage the business seamlessly. 

Temporary Incapacity After an Accident: If unresponsive due to an accident, your partner may not have legal rights to make health decisions without a Health and Welfare LPA. This could delay crucial treatment or prevent your wishes from being followed.

Mental Health Crisis: A sudden, severe mental health crisis can leave someone unable to make decisions. A Health and Welfare LPA ensures a trusted individual can advocate for appropriate support and treatment. 

Terminal Illness and End-of-Life Care: LPAs, particularly a Health and Welfare LPA, help ensure your end-of-life wishes are respected, relieving emotional burdens on your family.

The Pitfalls of DIY LPAs

While creating LPAs yourself might seem cost-effective, legal technicalities can lead to invalid documents due to incorrect witnessing or other common mistakes. Therefore, it’s essential to approach this process carefully.

The Cost of LPAs vs. The Cost of Not Having Them

While there is a cost associated with setting up LPAs, it’s essential to consider the potential costs of not having them.  If you lose capacity without an LPA, your loved ones may have to apply to the Court of Protection for a Deputyship order. This process can be lengthy, expensive, and stressful.  It can also mean that decisions about your care and finances are made by someone you wouldn’t have chosen.  In contrast, the cost of setting up LPAs is a relatively small investment in your future security and peace of mind.  They are arguably even more important than a Will, as they deal with your lifetime rather than just your death.

Benefits of Professional Legal Advice

Lawyers specialising in LPAs can guide you through the process, ensuring the document is legally sound and reflects your wishes. They can:

1. Explain the different types of LPAs and help you choose the right one for your circumstances.
2. Advise on appointing attorneys and discuss the implications and responsibilities
3. Minimise the risk of errors and future disputes by drafting the LPAs correctly.
4. Ensure proper witnessing and registration. 

Our Advice

Planning for the future can feel daunting, but it’s one of the most loving and responsible things you can do for yourself and your family.  We’re here to help. Contact us for a consultation to discuss your needs, or check online for an instant quotation. It’s an investment in your peace of mind and the well-being of those you care about.

The Key to Your Dream Home

The Process of Buying a House

Embarking on the journey to homeownership in the UK?  While the idea of cosy evenings and decorating dreams is appealing, the reality involves careful planning and execution. Here, we’ve set out a clear roadmap, outlining the key steps to make your house purchase as smooth as possible.

Laying the Foundation

Before you start browsing property listings, get your finances in order. This isn’t just about securing a mortgage. It’s wise to understand the whole picture. Create a detailed budget that includes mortgage repayments, legal fees (solicitor costs, searches, Stamp Duty), survey costs, moving expenses, and potential renovations.

Obtain a mortgage agreement in principle to understand how much you can borrow, but also be realistic about what you can comfortably afford each month, especially with potential interest rate changes. Finally, have a clear plan for your deposit—know where it’s coming from and how readily accessible it is.

Property Search & Viewings

Now comes the exciting part! Start your property search. However, make sure you’re focused. Define your needs and wants—location, size, and property type—and stick to your budget. Viewings are crucial. Don’t just focus on aesthetics; consider the property’s overall condition, local amenities, and transport links.

Make an Offer & Negotiation

You found “the one”. So, it’s time to make an offer. This is where your research pays off. Consider the market value and comparable properties. Be prepared to negotiate, as sellers may not accept your initial offer.

Choose a Conveyancing Lawyer

A good conveyancing lawyer will be your ally throughout this process. They will handle the legal transfer of ownership and ensure everything is in order. Don’t just pick the first name you find; shop around, compare quotes, and look for a professional experienced in the field.

Arrange a Survey

A survey is essential for uncovering any hidden problems with the property. There are three levels of survey. Choose the right one based on the property’s type and your needs. Don’t just skim the report; take the time to understand its implications. Issues identified might give you leverage to renegotiate or even walk away.

Understand the Importance of Searches

Your lawyer will conduct various searches to reveal potential issues with the property, including Local Authority searches (planning permissions and building regulations), Water & Drainage searches, and Environmental searches (contamination and flood risk). Understanding the results is vital, as they can significantly impact your decision.

Review the Contract & Raising Enquiries

The contract is a legally binding document. Your lawyer will meticulously review it and explain every clause. Don’t hesitate to ask questions. This is your opportunity to raise concerns and negotiate changes before you commit.

Finalise & Review Your Mortgage Offer

Once your offer is accepted, it’s time to finalise your mortgage. Carefully review the terms and conditions, including interest rates, repayment schedules, and any early repayment charges, to ensure you understand your obligations.

Organise Insurance

Don’t leave this until the last minute. Arrange buildings insurance from the point of exchange, as you will be responsible for the property thereafter. Also, consider contents insurance to protect your belongings and life insurance or critical illness cover to safeguard your mortgage.

Exchange of Contracts

This is the point of no return. Once contracts are exchanged, the purchase becomes legally binding for you and the seller. You’ll pay your deposit, and a completion date will be set.

Preparing for Completion

In the lead-up to completion, your lawyer will finalise all the legal paperwork, including transferring funds and arranging to pay Stamp Duty Land Tax (Stamp Duty). Ensure you’re packed and ready to move!

Completion

The day has arrived! Legal ownership of the property transfers to you. Funds are transferred to the seller, and you will receive the title deeds and keys. Congratulations, you’re now a homeowner!

Post-Completion

After the excitement settles, there are still a few things to do. First, ensure that Stamp Duty is paid within the deadline and that the change of ownership is registered with the Land Registry. Then, start thinking about redirecting your mail, setting up utilities, and managing all the other practicalities of moving.

Our Advice

Buying a house is a significant undertaking, but it doesn’t have to be a nightmare experience. You can turn your dream into a reality with a better understanding of the process and professional advice. Our team of experienced property lawyers has helped many clients purchase a new home. Don’t hesitate to contact us for further information or advice about buying or selling a property or any other property matter. We’re here to help.

Court Upholds Mother’s Best Interests in LPA Decision

A Lasting Power of Attorney (LPA) is a vital legal tool that allows you to appoint someone you trust to make crucial decisions for you if you become unable to do so. This provides peace of mind for you and your loved ones. However, the recent case of Norfolk County Council v CA and others EWCOP 64 demonstrates the complexities that can arise, even within close relationships, and the vital role of the court in protecting vulnerable individuals.

What is a Lasting Power of Attorney (LPA)?

An LPA is a profound expression of trust and intention. By creating an LPA, you take proactive steps to ensure your wishes are followed, even in challenging circumstances. This might be due to illness, injury, or simply as part of planning for later life.

Types of LPA

There are two types of LPAs in the UK: Health and Welfare and Property and Financial Affairs. The Health and Welfare LPA empowers a trusted individual to make critical decisions regarding medical treatment and care arrangements. At the same time, the Property and Financial LPA enables your chosen attorney to handle your financial matters, like paying bills or managing your assets. Given an attorney’s substantial influence on your life and well-being, choosing the right person is a deeply personal and significant decision.

The Norfolk County Council v CA Case

This case involved CA, a 79-year-old woman diagnosed with dementia, and her daughter, DA, who held both Health and Welfare and Property and Financial Affairs LPAs for her mother.  The case wasn’t simply about a disagreement regarding CA’s care; it involved serious allegations of abuse and coercive control by DA, including instances of physical abuse.

These allegations extended to DA’s ex-husband, who was also involved in the mistreatment of CA.  Norfolk County Council brought the case to the Court of Protection, seeking orders under the Mental Capacity Act 2005 and the court’s inherent jurisdiction to protect CA.  Mrs Justice Arbuthnot made findings of fact regarding the allegations of abuse, concluding that they had occurred.  The court then assessed CA’s capacity, determining that she lacked the capacity to conduct the court proceedings, make decisions about her care, and manage her property and affairs.

However, crucially, the court found that CA did have the capacity to make decisions about contact with others and to enter into or revoke an LPA.  As a result, the judge made an injunction under the High Court’s inherent jurisdiction, with specific conditions in place to protect CA from further harm.  This case highlights the critical importance of safeguarding vulnerable adults from abuse, even when a family member holds an LPA.

Key Takeaways

The Norfolk County Council v. CA case highlights several vital points.  Firstly, it demonstrates that the existence of an LPA does not automatically guarantee that the donor’s best interests are being served.  Secondly, it highlights the different levels of capacity.  Someone may lack the capacity for certain decisions but retain it for others, as was the case with CA.  Thirdly, it emphasises the court’s power to protect vulnerable individuals from abuse and ensure their well-being even when an LPA is in place.  Transparency and accountability are fundamental. Attorneys should maintain meticulous records of their decisions and actions. This transparency fosters trust and clarity and prioritises the donor’s best interests. The Court of Protection also emphasises the importance of supporting the donor’s independence as much as possible.

 What Should You Do?

If you’re contemplating the creation of an LPA, take the time to select your attorney carefully. It’s essential to have open and honest conversations about your wishes and confirm that they understand the gravity of their role.  Discussing your plans with other family members can also be helpful. A well-crafted LPA reflects your values and desires, so consider seeking legal advice from experienced lawyers who can guide you through the process and ensure that your document is customised to your unique circumstances.

Moreover, remember you have options if you ever feel uneasy about an attorney’s actions. Contact a solicitor for advice and reassurance. They can help clarify your concerns and guide you through any necessary steps, including the potential involvement of the Court of Protection if warranted. Don’t hesitate to act if you have concerns about someone’s safety.

Our Advice

We appreciate how overwhelming and emotional the process of creating a Lasting Power of Attorney can be. If you have any questions or concerns about LPAs or attorneys or need support navigating this vital process, please do not hesitate to contact us. We are here to help.

You Have a Will, But Do You Have an Up-To-Date Asset Log?

Why a Log is Crucial for Your Estate

You may have already taken the responsible step of creating a Will. This ensures your wishes are known and has given you peace of mind. But having a Will isn’t the whole story. Creating and maintaining an up-to-date, detailed asset log is a crucial, often overlooked task. Without it, even the most meticulously crafted Will can become a source of stress and potential conflict for your loved ones.

Why a Detailed Asset Log is Important

As the person you’ve entrusted with managing your estate, your executor faces the task of locating and valuing all your assets. This could include bank accounts, investments, property, valuable possessions, digital assets (online accounts and cryptocurrency), and insurance policies. This can be a monumental, time-consuming, and potentially expensive undertaking without a clear record. They may unknowingly overlook assets, leading to delays in probate and distribution or, even worse, disputes amongst your beneficiaries.

Simplifies Your Executor’s Role (and Keep Your Beneficiaries Happier)

An asset log acts as a comprehensive inventory of everything you own. It’s a roadmap for your executor, guiding them through administering your estate. Collating this information has several key benefits:

A Financial Aid in Life

Assets change over time. Maintaining a detailed log enables you to keep a contemporaneous record of what you own. This is a valuable tool for financial planning during your life and your estate after you’re gone. You can make informed decisions about investments, retirement options, and other financial matters without constantly digging for information.

Reduced Stress and Time

Having a readily available list of assets significantly reduces the burden on your executor. They won’t have to play detective, trying to piece together the puzzle of your finances and possessions. This schedule speeds up the probate process, allowing your beneficiaries to receive their inheritance sooner.

Fairer Distribution

A detailed asset log also helps with the fair and accurate distribution of your estate. It minimises the risk of assets being overlooked or undervalued, reducing potential disagreements among your beneficiaries.

Clarity and Transparency

A well-maintained log provides clarity and transparency for everyone involved. It clearly outlines what you own and where it’s located. Thus minimising confusion and potential disputes.

Protection Against Loss

In the event of theft or misplacement, your asset log can be invaluable in helping to recover your belongings. Keeping a copy with your will provides details about your estate assets, reducing the risk of things being forgotten, lost or the subject of fraudulent claims by others.

Digital Asset Management

In today’s digital age, many of us have online accounts, subscriptions, and even digital currencies. Your asset log should include details of these digital assets, including usernames, passwords (securely stored), and instructions on accessing them. This is crucial, as these assets can be easily lost or forgotten without proper documentation.

What Your Asset Log Should Include

Your asset log should be a living document, regularly updated as circumstances change. It should include:

Financial Assets

Bank accounts, investment portfolios, stocks and shares, ISAs, pensions, etc. Include account numbers, institution names, and contact details.

Property

Your properties’ details include addresses, title deeds, and mortgage information.

Valuables

Include descriptions, valuations, and insurance details for jewellery, art, antiques, collectables, and other valuable possessions.

Digital Assets

Include online accounts, email accounts, social media profiles, cloud storage, cryptocurrency wallets, etc. Include usernames, but store passwords securely and separately.

Insurance

Life insurance, home insurance, etc. Include policy numbers and contact details.

Other Assets

Any other assets you own, such as vehicles, business interests, or intellectual property.

How to Create and Maintain Your Asset Log

You have several options for creating and maintaining your asset log.  For example, a simple spreadsheet can be a good starting point. Alternatively, you might consider dedicated software designed specifically for asset management.  Finally, for more comprehensive support, your solicitor or financial advisor can help you create and maintain your asset log.

Our Advice

Creating and maintaining an asset log is an act of love and responsibility. It’s a gift to your executor and beneficiaries, making the probate process smoother and ensuring your wishes are carried out effectively. Therefore, don’t delay—start creating your asset log today. It’s one of the most important things you can do to protect your loved ones and ensure your legacy.

Finally, contact us today for advice on estate planning or any other wills, trusts or probate matter. We’re here to help.

Supporting Decision-Making When Capacity Varies

Oldham v KZ and the Challenges of Fluctuating Capacity

The recent case of Oldham Metropolitan Borough Council v KZ & Ors [2024] EWCOP 72 (T3) highlights the intricate legal challenges surrounding fluctuating capacity. This case, concerning a young deaf man with intermittent capacity, underlines the difficulties faced by the Court of Protection and legal practitioners when an individual’s ability to make decisions changes over time.

The Background

KZ, a 20-year-old who has had profound deafness since birth, has exhibited fluctuating capacity in several areas. These include his residence, care, and contact with others. While initially assessed as lacking capacity across the board, a subsequent evaluation revealed a much more nuanced picture. KZ can make informed decisions when calm, but his capacity wanes when distressed.

Key Takeaways

The judgment in this case clearly shows that dynamic, ongoing capacity assessment is essential, particularly for individuals with conditions that may impact their decision-making abilities. A one-time evaluation only provides a snapshot of a person’s capacity. Consequently, it may not accurately reflect their ongoing decision-making ability, particularly when their condition fluctuates.

In KZ’s case, his capacity varied depending on his emotional state. With regular reassessments, KZ would receive support that reflected his current understanding and ability to make informed choices. Furthermore, the judgment emphasises the need for specialised expertise in assessing capacity, particularly when communication barriers, such as deafness, exist.

Who Might Experience Fluctuating Capacity?

It’s important to recognise that fluctuating capacity can arise from various conditions and circumstances. Individuals diagnosed with enduring mental health illnesses such as paranoid schizophrenia and personality disorders may experience periods of lucidity interspersed with periods of psychosis.

Similarly, those with neurological conditions like dementia or acquired brain injuries may have good days and bad days, affecting their ability to make decisions consistently. The effects of a brain injury can vary greatly depending on the severity and location of the injury, and individuals may experience fluctuations in their cognitive abilities, including memory, attention, and decision-making. Substance misuse can also significantly impair cognitive function and lead to fluctuating capacity.

Recognising the diverse range of situations where capacity can vary is crucial for ensuring appropriate support and safeguards. 

The Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) provides a robust framework for determining capacity and safeguarding the rights of those who may lack it. However, the MCA doesn’t explicitly address the issue of fluctuating capacity. This lack of explicit guidance leaves room for interpretation and poses challenges in cases like KZ.

While the MCA offers guidance on assessing capacity at a specific point in time, it doesn’t provide clear-cut answers for situations where capacity fluctuates. This ambiguity necessitates a flexible and sensitive approach, prioritising the individual’s autonomy and right to make decisions whenever possible.

Supporting Decision-Making

The paramount concern in cases of fluctuating capacity is ensuring the individual is afforded every opportunity to make their own decisions. This requires a multifaceted approach, including:

1. Regular capacity assessments to track changes in an individual’s capacity and tailor support accordingly.

2. Clear communication and understanding to enable informed decision-making.

3. Tailored support that adapts to the individual’s fluctuating needs so they can make decisions when possible.

4. When capacity is lacking, decisions must be made in the individual’s best interests, considering their wishes, feelings, values, and beliefs.

The Role of Case Law

Undoubtedly, case law is vital in shaping our understanding of fluctuating capacity and guiding best practices. While the MCA provides a foundation, cases like KZ help to refine our approach and ensure the legal framework remains relevant and responsive to the evolving needs of individuals with fluctuating capacities.

Implications

The case of KZ serves as a poignant reminder of the complexities surrounding fluctuating capacity. As legal practitioners and the Court of Protection continue to grapple with these challenges, it’s crucial to advocate for greater clarity within the legal framework and foster collaborative efforts to support individuals in making their own decisions whenever possible.

By prioritising individual autonomy, promoting accessible communication, and providing tailored support, we can empower those with fluctuating capacities to live fulfilling lives and exercise their right to self-determination.

If you need support or advice on matters concerning mental capacity or Court of Protection matters, please do not hesitate to contact us. We’re here to help.

Supreme Court Clarifies Success Fees in Inheritance Disputes

A Family Divided: Hirachand v Hirachand [2024] UKSC 43

The Supreme Court’s recent decision in Hirachand v Hirachand [2024] UKSC 43 significantly impacts “no win, no fee” agreements, also known as Conditional Fee Agreements (CFAs). This ruling has important implications for law firms and clients, particularly regarding success fees in inheritance disputes.

Background of the Case

The case involved a family dispute over an estate, where one party had entered into a CFA with their solicitor. The agreement included a success fee, which is an additional charge levied by the law firm if the case is won.  The dispute centred around the reasonableness of the success fee and whether it should be paid from the estate’s funds.

What Are No Win, No Fee Agreements and Success Fees?

“No win, no fee” agreements enable individuals to obtain legal representation without the need to pay upfront costs. If the case is unsuccessful, the client generally owes nothing. Conversely, if the case is successful, the law firm is entitled to charge a “success fee” in addition to their basic fees. This success fee compensates the firm for the risk taken in pursuing the case.

Why Hirachand v Hirachand is Important

In this case, the Supreme Court’s decision clarifies key principles concerning success fees in “no win, no fee” agreements. It offers guidance on: 

1. Reasonableness of Success Fees. The Court underscored the necessity of evaluating the reasonableness of success fees by considering factors such as the risks involved in the case, the complexity of the matter, and the level of expertise required.

2. Transparency and Client Understanding. Solicitors must ensure that clients fully comprehend the implications of success fees and how they are calculated.

3. Payment of Success Fees from Estate Funds.The Court clarified when success fees may be payable from the estate’s assets, particularly in estate disputes. 

Our Advice

This ruling enhances protections for clients entering into “no win, no fee” agreements. It emphasises the necessity for transparency and fairness in determining success fees so that clients do not face excessive or unreasonable charges.

If you are considering a “no win, no fee” agreement, it is crucial to understand its terms, especially the success fee. Ensure you know precisely how the success fee is calculated and the factors influencing its determination.

If you would like more information about this or a related topic, please get in touch with us. We’re here to help.

Supporting the Next Generation

The Best Ways to Support Your Family Financially

Want to give the next generation a financial head start? You’re not alone. Recent research from Savills shows that families funded over £9 billion worth of property purchases in 2023. Furthermore, a study by the Institute for Fiscal Studies found that over an eight-year period, around 30% of adults in their 20s and early 30s received at least one substantial gift or loan from family members. However, with different options available, parents and grandparents face a financial dilemma. What is the best way to support the next generation financially?

Making a Gift

Gifts are often the preferred choice, and for good reason. They’re simple, and if you survive for seven years after making the gift, they’re inheritance tax (IHT) free. This means more of your money goes directly to your loved ones.  According to HMRC, gifts play a significant role in inheritance, with billions of pounds being passed on in this way each year. However, before making a gift, you should always consider your own financial circumstances. Remember that once a gift is given, it’s challenging to retrieve it if your circumstances change.

Providing a Loan

Perhaps you want to help without simply giving money away. Loans can be a good way to do this while teaching younger generations about financial responsibility. However, to ensure your loan is handled responsibly, it’s crucial to have proper documentation. Without it, your money could be at risk. It’s common to stipulate in a loan agreement that the outstanding amount should be deducted from the borrower’s share of any future inheritance. While this isn’t inherently problematic, it must be documented. Formalising the arrangement, including all terms, interest rates, and a repayment schedule (if applicable), is essential to ensure both parties are clear on their obligations.

Setting up a Trust

Trusts offer the greatest flexibility for financial support but are also the most complex option.  They aren’t exclusive to the rich, either. Trusts can protect assets for future generations and be tailored to your specific needs. This makes them a powerful tool for long-term planning to ensure the money is used for a particular purpose, such as education or a first home. While statistics on the number of trusts in the UK are difficult to pin down, government data suggests that millions of trusts are in operation, highlighting their popularity as a long-term planning tool. If a trust seems the best fit for your situation, consider the costs involved and who you would appoint as trustees. Being prepared and aware of these responsibilities can help you make an informed decision.

Our Advice

By considering your unique situation, you can empower yourself to make the right financial decisions for your family. Factors to consider include your age, health, the amount of money involved, your relationship with your beneficiaries, and your overall tax situation.

Make a Will Your Priority in 2025

Protecting your loved ones is a year-round responsibility. However, the New Year offers a unique opportunity to ensure your family is looked after by making a Will one of your top priorities.  While joining a gym and adopting healthy eating habits are undoubtedly worthwhile, making or updating your Will should be at the top of your list in 2025.

Discussing wills may not be the most cheerful way to start the year, but securing your family’s future and ensuring your wishes are respected is arguably the most important gift you can give. However, recent studies reveal that a staggering 56% of adults in the UK don’t have a Will, meaning intestacy laws will distribute their assets, which may not align with their wishes.

Why a Will is a Priority in Today’s World

Making a Will should be a priority for several reasons:

Protect Your Partner

In the UK, the number of couples cohabiting has more than doubled in the last 30 years, and this number is steadily rising. It’s crucial to remember that without a Will, co-habiting partners have no automatic inheritance rights. By creating a Will, you ensure your partner receives what you intend.

Safeguard Your Children

This is particularly important if you have children from a previous relationship, stepchildren, or young children who may need guardians appointed. A Will protects their future.

Prevent Family Disputes

Sadly, inheritance disputes reaching the courts have more than doubled in the past decade. However, a professionally prepared Will can help prevent family disputes and legal battles over your estate. By specifying your wishes in a Will, you provide clarity and peace of mind for your loved ones, ensuring your legacy is handled with respect and care.

Beyond these crucial protections, a Will also ensures a smooth transition for your business, allowing it to continue operating in your absence. It also empowers you to support your favourite causes by including charitable donations, ensuring you leave a lasting legacy behind.

Don’t Forget – Life Changes – So Should Your Will!

Marriage, divorce, the arrival of a new baby, or a change in financial circumstances can significantly impact your Will. If you already have one, review it regularly and make updates as needed. Remember, remarriage automatically revokes an existing Will, so don’t leave your affairs to chance!

A Word of Caution About DIY Online Wills

While tempting for convenience and low cost, DIY online Will kits come with significant risks. STEP‘s most recent survey revealed serious problems with DIY online Wills. Over 79% of users encountered issues like unclear instructions, hidden fees, or difficulties proving the Will’s validity.

Mistakes in drafting can invalidate your will, creating a legal headache for your loved ones. Unregulated providers are common online, so you might encounter unqualified assistance. And unlike an experienced specialist lawyer, online kits can’t offer personalised advice, leaving you vulnerable to costly errors.

Our Advice

Make 2025 the year you take control of your legacy. Making a Will isn’t just about distributing assets. It’s about providing security and peace of mind for everyone you care about. Drawing up a Will may seem morbid or intimidating at first. But once it’s settled, you will be relieved knowing your affairs are in order and you have appointed someone you trust as your executor.

Don’t delay – contact us today for an instant quote and start securing your family’s future. We’re here to help!

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