What Happens When Financial Settlement Negotiations Break Down?
Turning Your Financial Agreement Into a Legally Binding Consent Order
A Lasting Power of Attorney is a legal document that gives one or more people (your attorney or attorneys) the authority to make important decisions or assist you to make important decisions if you ever lose mental capacity to make such decisions for yourself in the future.
Read more here: Why You Need a Lasting Power of Attorney | Endeavour Law
There are two types of LPA you can create:
Health and welfare Lasting Power of Attorney – This gives your Attorney/Attorneys the authority to make decisions about issues regarding your medical care, including whether you should be given Life Sustaining treatment; or where you should have assistance with your day-to-day care at home or moved into a residential care setting.
Property and Financial affairs Power of Attorney – This gives your Attorney/Attorneys the authority to make decisions covering your home and bank accounts. This can include managing and paying your bills, collecting your pension and/or benefits. Arranging and dealing with the sale of your home
You can make either or both types of Lasting Power of Attorney depending on the types of decisions you feel you need help with
Making a Lasting Power of Attorney is generally a straightforward process. However, it is important to ensure you get all the details right to ensure your Lasting Power of Attorney can be effectively used if required.
Our team at Endeavour can complete the forms for you, which in turn you will need to sign together with your attorney/attorney’s and any replacement attorney/attorneys you may appoint. We can then arrange to register your Lasting Power of Attorney at the Office of Public Guardian, and it will be ready to use when its required.
An Attorney needs to be over the age of 18 and many people appoint their family or friends. It is important when deciding who to appoint that you appoint the person / persons who will give you the peace of mind that all decisions will be made in your best interests. People often consider appointing a professional attorney such as a Solicitor who is a specialist in this area and has the expertise and understanding of the implications of decisions being made for you.
A Lasting Power of Attorney takes affect once it has been registered. Registration of Lasting Powers of Attorney can take around 8-10 weeks so is important to bear this in mind.
With the Property and Financial Lasting Power of Attorney, once registered it can be used with consent when someone still retains capacity but makes a choice that they need assistance with certain aspects of the financial decisions, but this is done with consent. For example, if you need your attorney to attend the bank to pay a bill for you. If you subsequently lose mental capacity they can continue to act on your behalf for all property and financial affairs
With the Health and Welfare Lasting Power of Attorney, this can be used once it is registered but once the Person making the Lasting Power of Attorney (Donor) has lost mental capacity.
The Lasting Power of Attorney should specify anyone else who should be notified when it is registered. This will generally be family members of the donor or anyone else who is likely to be affected by the decisions. Normally it would be an individual who would generally be expected to be consulted about important decisions about you.
Providing you still have capacity; you can decide to end your Lasting Power of Attorney at any time.
You will need to contact the Office of Public Guardian sending the original LPA and a Deed of Revocation to them – Our Specialist Solicitors at Endeavour Law can assist you with preparing the necessary documents for you
If a Lasting Power of Attorney has been created but not yet registered, you may be able to object to the registration. This might occur when you have concerns over the individual who has been appointed as an Attorney.
If you are concerned that an attorney acting under a Lasting Power of Attorney is not acting in the best interests of the Donor. If you have concerns, then these should be reported to the Office of Public Guardian. If they accept your concerns the Court of Protection can cancel the LPA and the appoint a deputy to make the decisions.
Enduring Powers of Attorney were created up until 1st October 2007. They had similar powers to that of Lasting Powers of Attorney although they could also be used before someone lost capacity
Our prices for creating a single Lasting Power of Attorney (either Property and Financial or Health and Welfare) start at £450 Plus VAT. There is also a registration fee of £82.00 payable to the Office of Public Guardian when you apply to register
For making both types of Lasting Power of Attorney our fees start at £550 plus VAT.
You may be eligible to apply for an exemption of the registration fee if you are in receipt of certain means tested benefits. Please ask us more if you believe you may be eligible.
Read more here: Do I Need a Will? | Wills & Estate Planning Advice
It costs £360 including VAT for a single will and £660 Including VAT for a Mirror Will. Complex Wills involving specific financial transactions or trusts will require further consultation and our expert solicitors can discuss the individual costs with you at the time of the meeting.
You should generally check that your Will still reflects your wishes every 3-5 years or if there are any major changes in your Life such as moving house; getting married; divorce; births and death
Changing your Will can be easy and not as costly as the costs of making a Will from scratch. Call us today to discuss changes and our Solicitors will be able to advise you further
Yes, we can. It is very important that your Will is kept in a safe, secured located. At Endeavour Law we can ensure that your Will is kept safe and secure, providing you with peace of mind.
Read more here: Read more: What Happens If Someone Dies Without a Will?
Read more here: How to Choose the Right Executor for Your Will
If you have children who are minors, then it is important to appoint a guardians in your Will. Guardians take parental responsibility for any of your children who are under the age of 18 at the time of your passing. Guardians can also be Executors.
When divorcing or if you have divorced, you should review your existing Will or make a new one to reflect the changes in your circumstances.
It is very important that you make or review your Will for the following reasons:
- Your spouse could still inherit from your estate if you have not made a Will and you die before having obtained the Decree Absolute
- You may wish to appoint guardians for any of your minor children
- If you have appointed your spouse as your executor, the appointment will be invalid following your Decree absolute
A Grant of Probate is the Legal document recognising the Validity of the Will. It gives the named Executor the legal authority to manage the Deceased estate and dispose of any property or collect in any assets of the deceased.
Probate will usually be required if the deceased owned property and/or money held in stocks and shares, bank accounts, investments and some other financial institutions in their sole name. Although each institution has their own limits below which probate is not required.
Assets held jointly with another party (such as a joint bank account) or a property held as joint tenants will pass automatically to the joint surviving owner and probate may not be required for those assets. Whilst some joint assets may require probate it will be dependent on the institution’s requirements.
On average when the application is submitted to Probate Court the Grant of Probate is taking between 8-10 weeks to be processed.
However the process of obtaining probate and finalisation of a whole estate generally can take up to 12 months from the date of death to the estate being distributed.
The Court application fee is £300.00 and £1.50 per office copy, although if the estate is under £5,000.00 there is no fee to pay. Other legal and professional costs around in connection with the administration of estate will vary, but can typically range between £3,000.00 - £8,000.00. Court Fee Calculator
Some Banks and Building Societies will allow the application fee to be paid from the deceased bank account. If however this is not possible the executor may need to pay the fee themselves however they will be entitled to reclaim this back from the estate at a later date.
If you are selling the deceased property whilst you can market the property before probate is granted; you will be unable to proceed to exchange or completion until the Probate has been granted. Many people choose to hold off marketing until they know the application is at the courts waiting processing.
Where a deceased has not left a Will, they are deemed to have passed “intestate”. In these circumstances the Deceased estate then needs to be dealt with in accordance with the Intestacy Rules (Check who can apply for probate and inherit if someone dies without a will - GOV.UK).
Some assets as they do when someone dies with a Will, will require legal authority to enable them to be deal with. When someone dies without a Will an application to the Probate Court is required for Letters of Administration.
An Executor takes their appointment from the Will and their powers commence at the date of the persons death; whilst an Administrator is appointed by the court and the powers commence at date of issue of the Letters of Administration.
Whilst they have many responsibilities however the key points are:
- Collecting and gathering all the financial information of the deceased
- Sending a copy of the Death certificate to the various institutions
- Preparing a detailed inventory of the assets owned by the deceased
- Determining any debts and liabilities due by the deceased
- Calculating any IHT payable and arranging payment
- Delivering the returns to the HMRC in respect of any taxes due
- Preparing and submitting the application to the Probate Court
- Once authorised to do so collecting in the assets; closing down accounts and arranging sale of property (if required)
- Settling the debts of the estate
- Distribution of the estate
Conveyancing is the legal process of transferring the ownership of property from one person to another. There are different processes involved throughout the transaction including preparation of the contract documentation on sale; title checking the documents on a purchase, requesting searches and raising enquiries, preparation for exchange of contracts, to name but a few.
It is wise to obtain a quote for the costs before you have sold your property, or put an offer in to buy, so you can ensure you have budgeted for the same. However ,once a sale has been agreed, or a purchase secured, then it will be necessary to instruct a solicitor as the estate agent will need a point of contact to issue the Memorandum of Sale to.
You should always do initial research. There are many different mortgage lenders and many different products available in the market, and you will need to ensure that you find the best deal for you. It is advisable to check this before you put an offer in. Most lenders can provide you with a mortgage in principle before you find a property.
A completion date is the date which you move into the property, whilst exchange is the date you become legally contracted to purchase the property. On exchange, the agreed completion date will be written into the contact.
When purchasing a property, it is advisable to find out as much as you possibly can about the property you are purchasing. You can have searches carried out to understand the property and its surrounding area in more detail and most mortgage lenders require you to have carried these out. The main searches are:
- A local search – This is a set standard of enquiries that are raised with the local council. It relates solely to the property itself and would not for example reveal proposals to develop or extend neighbouring land.
- A drainage search – This checks if the property is connected to the mains for water drainage and sewerage; it will also provide information on the location of the sewers and if they fall within the boundaries of the property.
- An Environmental Search – This investigates potential environmental risks associated with a property and its surroundings. It will examine historical and current records to identify issues such as flooding, contamination or other hazards that could impact the property.
- Other Searches – These could include Coal Mining, Tin Mining, or chancel repair searches.
Conveyancing searches normally take between 2 and 3 weeks to be returned to your conveyancer.
If you are buying with the aid of a mortgage, your mortgage lender will require a valuation, but this is not a survey. It is always sensible to have your own independent survey of the property and your conveyancer can help to recommend a surveyor.
The contract usually requires you to insure your property on exchange of contracts. It pays to shop around to find the best price.
The contract usually requires 10% of the purchase price to be paid on exchange, however sellers may often agree a lower deposit price. You can also usually use the deposit you receive on your sale as part payment of your deposit on your purchase. Your designated conveyancer can advise you on this.
Not automatically. Contracts normally stipulate you only get access to the keys to the property once completion has taken place, however there may be certain circumstances where access is required before completion (i.e. a stipulation by your mortgage lender that works need to be completed before completion). If this is apparent, your designated conveyancer can advise you on the process and negotiate arrangements for you.
Usually no, but there can be some exceptions. For example, if the firm has two or more offices it may be possible for conveyancers in different offices to act for both buyer and seller.
The agents’ commission is usually settled on the completion date from the net proceeds of sale of the house. Your solicitor will usually settle this on your behalf.
Generally, no. If anything in the new property does not work, you are liable. You should always check that all appliances, central heating and other systems are in good working order before you commit to an exchange of contracts. Your conveyancer will advise you to reinspect before they complete the exchange of contracts for you. If damage has been caused to the property you may be entitled to compensation. If the seller leaves furniture or rubbish in the property, this will be in breach of contact as they have not provided vacant possession.
A remortgage typically takes between 4 –8 weeks to competed. However, it can vary depending upon the factors like the complexity of your situation and the lender chosen.
Generally, you don't need a solicitor if you remortgage with the same lender and are simply transferring to a new mortgage deal. However, if you are making significant changes to the mortgage in terms or releasing the equity you might still need a solicitor.
Yes, it is possible to release equity at the same time. By releasing equity, you could potentially access additional funds to complete home improvements, for example.
If you have a mortgage on your property you must inform the lender when transferring equity, regardless of the reason. They will require written consent before the transfer proceeds. The lender will want to ensure that their security is protected.
When equity is transferred from one person to another and the chargeable consideration exceeds the threshold, then SDLT will be payable.
Still have questions? Let us know, and one of our experienced solicitors will get back to you with tailored advice.
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