What Is Probate?

What Is Probate?

If you’re suddenly needing to deal with probate, it can be a little daunting if you don’t know what it entails. To clarify what probate is and how long it takes, we’ve created this short and simple guide. 

For further support, you can always get in touch with our dedicated probate solicitors. We’re based in Exmouth, Exeter, Sidmouth, Seaton, Honiton, and Taunton— so feel free to contact the office most convenient for you.

When a person dies, someone will be legally allowed to deal with their estate (such as their money, property, and possessions). Probate is the court order confirming the last will of the deceased. It confirms who has the authority to deal with the estate. If you have the Grant of Probate, no one else has an entitlement to administer the estate. It means you cannot make any financial plans, distribute inheritance, or sell their property until you have probate.

In order to obtain a Grant of Probate, you need to apply for it. Before you do this, you should check that it is necessary and that you’re eligible to apply. Not everyone can apply for probate for a particular individual. Only certain people will be considered. How do you know whether you can apply for probate? It all comes down to the will. If there is a will, then named executors can apply. If there’s not a will, then the closest living relative can apply.

Applying for probate

You can apply for probate through the UK government site or contact a legal specialist to help you through the process. Though you will need to pay for a probate solicitor’s services, it can save you a significant amount of time and stress. Applying for probate can get complex. For example, when the deceased dies without a will or there are doubts over the validity of the will. The estate could also have complex arrangements, be bankrupt, or include foreign property or assets.

An experienced probate solicitor will be able to guide you through the process, offer expert advice, and help you obtain a Grant of Probate with minimal hassle.

If you have been approved for probate, you’ll either receive a ‘Grant of Probate’ (if the person left a will), ‘letters of administration’ (if they did not leave a will), or ‘letters of administration with will annexed’ (if the executor cannot apply or the will does not name an executor). 

Help with probate: contact Everys solicitors

In this guide, we’ve outlined probate as simply as possible. However, the practical task of probate can sometimes be much more complicated. If you’re looking for someone to help you through the probate process, our wills and probate lawyers are on hand. If you’re about to apply for probate, get in touch. We’ll guide you through the process.

Contact us to chat with one of our friendly, experienced probate solicitors in Exmouth, Exeter, Sidmouth, Seaton, Honiton, or Taunton.

I Want A Divorce – What Is The Process And What Factors Affect The Cost?

I Want A Divorce – What Is The Process And What Factors Affect The Cost?

Divorce can be a challenging, emotional, and often expensive process for couples. Whatever the reason behind your separation, if you and your spouse are seeking a divorce, here’s all you need to know about the process and associated costs. And if you’re looking for experienced divorce lawyers to support you with your case, don’t hesitate to get in touch with Everys Solicitors.

Can I get a divorce? 

According to the Office for National Statistics (ONS), 42% of marriages end in divorce. For most couples, this is not a sudden turn of events — you may have felt emotional distance or marital discord for some time or have perhaps been living separately. Divorce is the legal ending of your marriage.

In England and Wales, to qualify for a divorce, you must:

  • Have been married for over a year.
  • Be in a relationship that has permanently broken down.
  • Be in a marriage that is legally recognised in the UK (including same-sex marriage). However, the process is different for a civil partnership.
  • Live in the UK permanently — or the UK must be the permanent home of your spouse.

The Divorce, Dissolution and Separation Act 2020 came into force on the 6th of April 2022, allowing couples to divorce without having to demonstrate a ground for divorce. This has a very different approach than previously, now enabling couples to divorce on a ‘no fault’ basis.  The new Act also applies to civil partnership dissolution.

How long does the divorce process take?

The divorce process is unique to the couple involved, and their divorce lawyers. The new system involves parties being encouraged to agree on issues surrounding finances, property, children. The new Act requires a very different approach to the words previously used in Divorce. No longer will they be described as Petition; Decree Nisi and Decree Absolute.  Instead, the new wording will be Sole or Joint Applicant/s; Conditional Order and Final Order.

Divorce costs

Divorce costs can vary. To file an application, you will need to pay a £593 court fee.

A divorce will accrue the cost of standard court fees, along with your divorce lawyer’s fees. There may be additional fees if you need a replacement marriage certificate or any translation services.

Child maintenance is not being received. What can you do?

Child maintenance is not being received. What can you do?

Child maintenance is not being received. What can you do?

Posted on 11th May, 2022

Child maintenance – what happens if your child’s other parent doesn’t pay?

Child maintenance is generally paid to the parent who deals with most of the day-to-day childcare, with payments made by the child’s other parent. If payments stop, it can make life very difficult for both parent and child.

Payments are agreed upon at the time of divorce or separation. The route for enforcing maintenance payments will depend on how they were originally agreed.

The amount of child maintenance to be paid is decided upon in one of three ways, either by agreement between parents, through the Child Maintenance Service (CMS) or by way of a Court Order.

Enforcing child maintenance payments that were agreed in a private arrangement

If you reached an agreement as to the amount of child maintenance to be paid, this may be included in the Financial Order that deals with the settlement of any claims flowing from a Divorce.  If you are not married and separating from your partner, it is possible to refer to such payments with a Separation Agreement.

If your child’s other parent has stopped making payments, the first step is to speak to them and try and find out the reason. If there is a Financial Order in place, for a year or more, you can ask the CMS to arrange maintenance payments to be made to you.

They will not collect any arrears, but you will be entitled to payments through the CMS from the date of your application to them.

Alternatively, you can make an application to the Court to enforce the Order and recover all the money owed to you. This also applies to parents where child maintenance was imposed by Order of the Court.

Enforcing child maintenance payments through the CMS

If the CMS arranged child maintenance or if you have asked them to step in to collect child maintenance, they have a range of options to deal with a non-paying parent. These include:

  • Requiring the paying parent’s employer to deduct the sum from their wages
  • Ordering the paying parent’s bank to take payment from their account; this could be either regular payments or a lump sum and could be taken from a joint account or an unlimited partnership account or a sole trader account
  • Asking the Court for a liability order to recover the money owed

The CMS’s ‘collect and pay’ service can often be an effective way of ensuring that payments are made if the paying parent has been reluctant to pay regularly or on time. If the CMS experience difficulties in obtaining the money, a liability order allows them to take further steps to obtain the outstanding payments, including:

  • Asking bailiffs to liaise with the parent to obtain the outstanding amount, failing which the bailiffs will seize and sell goods
  • Obtaining an order for sale allowing disposal of property or other assets to cover the amount owed
  • Registering a charging order against any property owned by the parent
  • Registering the outstanding debt on the Register of Judgments, Orders and Fines that will affect their credit rating until the debt is cleared
  • Revoking passport or driving licence or disqualifying the parent from applying for these
  • In extreme cases, asking the court to impose a custodial sentence

Contact us

If you would like to speak to one of our expert family lawyers, ring us on 01823 362890 or email us at moira.reynolds@everys.co.uk or lisa.mitchell@everys.co.uk.

Divorce and Hidden Assets

Divorce and Hidden Assets

Divorce and Hidden Assets

Posted on 5th May, 2022

Hidden assets – what will happen if someone hides their assets during a divorce?

In dealing with financial matters in a divorce, the Court will require both parties to make full and frank disclosure of their assets. When one party fails to advise the other of the full extent of their assets or tries to hide details, they could face serious penalties.

During a divorce, it is important to reach an agreement over how assets will be split. This should be put into an order of the Court so that it is binding on you both in the future. Without order, it may be open to your former spouse to come back to you at any stage and make a financial claim.

The usual way of disclosing assets prior to making an agreement or taking the matter to Court is by completing Form E. This is a lengthy form that will also include details of children, your situation, and any potential outgoings as well as in-depth information about all property and finances. Evidence will also need to be included, such as bank statements and investment account balances.

Hiding assets

This is far from advisable and will undermine any potential settlement discussions and offers made.  If it is found, after the event, that assets were hidden then a party may be in contempt of Court and the whole settlement revisited.  Attempts that might be made to hide assets include transferring them to third parties to hold, putting property into a company or trust, undervaluing business interests or other assets or providing false paperwork in respect of debts or invoices. Transactions that take place within three years of the start of divorce proceedings are assumed to have been made to frustrate a financial claim and the party who moved the assets beyond reach will have to show that they did not do this to protect them from their spouse.

Misleading or fraudulent statements constitute perjury, which is taken very seriously by the Court.

If you believe that your spouse is attempting to hide assets, it may be possible to ask the Court for a freezing order, preventing them from being moved. If they have already been moved, then the Court may make an avoidance of disposition order or simply take the value of the asset into account when splitting the finances.

The Court also has the power to make a search order to try and uncover hidden assets as well as an order for disclosure of documents.

When assets have been hidden in divorce

The penalties for hiding assets in a divorce can be substantial. The Court may give the guilty party a lower sum than they might otherwise have received and may also require them to pay the legal costs of the other side.

The Court can make an order splitting assets on the basis of what it believes the true position to be. Where assets come to light after an order has been made, the Court has the power to reopen the case and set aside a previous order, making a new one in light of the hidden assets.

Hiding assets is fraud, which is a criminal offence and in the most severe cases, punishable by imprisonment.

Contact us

If you would like to speak to one of our expert divorce solicitors in our Family team, ring us on 01823 362890 or email us at moira.reynolds@everys.co.uk or lisa.mitchell@everys.co.uk.

Bridging to buy a new home

Bridging to buy a new home

Bridging to buy a new home

Posted on 4th May, 2022

Taking out a bridging loan for your house purchase – what you need to know

Recent reports in the financial press suggest more homebuyers are taking out bridging loans so that a purchase can proceed before they have sold their existing property.  A shortage of supply in sought-after locations has made some buyers reluctant to lose a property that they really want.

If you are selling your home and buying another, you will usually aim to complete the two transactions back-to-back. You can then use the income from your sale to fund your purchase, and there is generally a chain of interdependent transactions where each buyer, except the one at the bottom of the chain, relies upon selling their own property before they can proceed.

“Taking a loan, which helps you bridge the gap between acquiring your new home and later completing the sale of your old one, can let you secure your purchase regardless of any delays in the chain or even if it collapses. But you will own two properties for a period and there are risks which you need to consider and should discuss with your lawyer,” says Jo Barrett a Conveyancing Executive in the residential property team with Everys.

Owning two properties

If you plan to buy another property before selling your current home, this could have tax implications. There are certain reliefs, for capital gains tax and inheritance tax purposes, which apply to your principal private residence. Owning two properties changes how these reliefs apply and you should discuss the implications with your professional advisors.

Similarly, it may affect the stamp duty land tax on your purchase. As you will own more than one property, you will have to pay stamp duty land tax at a higher rate. There is a provision for a refund if you sell your old home within three years. However, you will need to make sure you satisfy all the conditions and factor this into your plans.

Pros and cons of a bridging loan

The main advantage of a bridging loan is flexibility. As it operates independently of your sale, it can be an alternative to agreeing a delayed completion or having to find another buyer if your chain collapses. It can also be suitable if you need to move swiftly, for example when buying at auction. In addition, bridging finance may be available for certain types of property when a conventional mortgage is not.

However, there are also disadvantages. First, bridging loans are usually more expensive than conventional mortgages with higher interest rates and additional set-up fees. Finally, whereas your ability to get a mortgage will depend upon your income, to qualify for a bridging loan you must satisfy a lender you have sufficient assets, for example having enough equity in your existing property.

Types of bridging loan

There are two types of bridging loan:

  • ‘closed’ – where you will have a fixed end date, for example, if you have exchanged contracts on your sale and are looking for funds to tide you over until you receive the completion monies; or
  • ‘open’ – with no fixed end date as you have no certainty over exactly when you will be able to repay it, although the lender will usually expect repayment within one year.

Discuss with your lawyer

You should discuss your situation with your conveyancer. For example, if you plan to use the proceeds from the sale of your home, it is important to remember that until you exchange contracts your prospective buyers could change their minds. If that happens, ask yourself how you would repay the loan.

Once you have exchanged contracts, your buyers are legally obliged to complete on the agreed completion date. Even so, the arrangement is not entirely risk-free and, if you decide to proceed with a bridging loan, we may suggest additional ways of mitigating risk.

Consider alternatives

You may also want to consider alternatives depending on the situation, for example, a delayed or conditional completion date, borrowing from family members, remortgaging your existing property, equity release, selling investments, or using part of your pension.

If you are buying from a developer, they may even be prepared to accept your existing property in part exchange.

What is right for you will depend upon your personal circumstances; it is our priority to ensure you understand the options and risks involved.

Second charges

A bridging finance lender will usually take a charge over your existing property as security. If you cannot repay the loan, this means you could lose your home. Having a solid repayment plan is vital.

Bridging finance involves additional issues and the legal documentation is slightly different from a conventional mortgage. If you already have a mortgage on your existing property, the bridging loan lender will take a second charge which your mortgage lender will usually need to consent to.

It is important to use a conveyancing lawyer with experience in this area. This will ensure completion of the necessary formalities without delay and preserve one of the main advantages of bridging finance: speed.

How we can help

We have experience in all aspects of residential property conveyancing, including bridging finance. A bridging loan may not be suitable for everyone, and we will always give you independent advice about the risks involved. Whatever you decide, we will help keep your transaction on track even when things do not go entirely to plan.

For further information on buying or selling your home, please contact Jo Barrett in the residential property team on 01404 540961 or email jo.barrett@everys.co.uk.

Everys has offices in Exeter, Exmouth, Honiton, Seaton, Sidmouth, and Taunton.

This article is for general information only and does not constitute legal or professional advice.

The Hidden Costs of Leasehold Property

The Hidden Costs of Leasehold Property

The Hidden Costs of Leasehold Property

Posted on 10th March, 2022

You may have seen recent media reports on the so-called leasehold scandal. First, escalating ground rents, which increase exponentially after periodic reviews. Then, the cladding crisis, which has spotlighted the costs landlords can pass on through service charges. So, if you are buying a new home, should you avoid leasehold properties?

“There are definitely more issues with a leasehold home than a freehold one,” agrees Clare Stanbury, a solicitor in the residential property team. “However, this does not mean you should discount a leasehold property. While there may be extra things to consider, a good solicitor will help you to mitigate risks and there are also government reforms in the pipeline, which will increase protection.”

Here we look at some of the issues and the additional costs which arise with a leasehold property.

Ground rents

As a leaseholder, you will almost certainly have to pay ground rent. Traditionally, this is usually a small amount, for example, £100 per annum, or even a nominal ‘peppercorn’ amount.

However, in recent years, some developers have used ground rents to create an additional income stream which they then sell on to investors. Instead of moderate increases over the lifetime of a lease, for example in line with inflation or a small percentage, the ground rent increases exponentially.

Formulae, which may appear innocuous, can prove punitive. For example, an initial ground rent of £200 which doubles every five years will be £6,400 by year 25. This creates an ongoing financial burden and makes it hard to sell or remortgage.

Recent changes in the law mean any new ground rent can only be for a token amount. This is good news if you are buying a new build or a conversion. However, it will not affect existing leases and it is still important to check the lease terms very carefully. Inexperienced conveyancers, or those relying solely on standard procedures, can easily overlook the detail of ground rent provisions. So, choose one familiar with leases and who can give your purchase their individual attention.

Cladding, who will pay?

Following the Grenfell Tower fire tragedy, attention has focused on the safety of multi-storey blocks and the need to replace inflammable cladding. The issues are complex and controversial. Although the Government is introducing legislation to improve safety, this is unlikely to resolve completely who should pay to bring a defective building up to standard. In some cases, the lease may permit the landlord to recover this cost through the service charge. This may result in affected leaseholders facing an average additional cost of £9,000 per flat. In the worst cases, the figure could be much higher.

Your survey and solicitor’s enquiries should reveal any problems with cladding. Some properties, although affected, may have a satisfactory remediation plan in place, with the landlord paying for the works or the cost discounted in the price. Your solicitor will clarify these matters. You can then make an informed decision on how to proceed.

Wider issues with service charges

Problems with cladding have also highlighted wider issues with service charges. Well-drafted, these provisions should ensure all leaseholders in a building contribute to the cost of maintaining shared facilities. They should set out clearly which services the landlord must provide, and the mechanism for funding and delivery should be fair and reasonable.

Some leaseholders feel they do not have enough say over the services they receive and are unhappy with cost and quality. There is already some legal protection in place for leasehold owners, who have the right to challenge unreasonable costs. However, in practice, this can prove a time-consuming and expensive exercise, especially if it becomes necessary to repeat it.

Conversely, in many leasehold developments, the service charge provisions work well. For example, leaseholders may take an active role in management through a company they control. When viewing a leasehold property, ask about the management of common parts and service charges. It is easier to avoid buying into potential problems than to have to resort to your legal rights to sort them out later. Your solicitor should investigate any potential service charge disputes as part of their pre-contract enquiries, so you should not be caught out.

Indeed, as your solicitor, we would look carefully at how the service charge provisions work overall. As well as clarifying the amounts, we would check the seller’s payments are up to date and correctly apportioned on completion.

Ideally, the service charge should spread the costs evenly over time, so all leaseholders contribute based on their period of usage, not just when an item of expenditure arises. Under-provision in the past could mean disproportionately large increases later. For example, replacing a capital item, such as a roof or service lift, can be expensive. The landlord should have apportioned the cost over the item’s lifetime and collected this through the service charge on a rolling basis from all the flat owners, past and present, who have benefitted. This way, there should be a pre-existing fund for its replacement. However, if there are insufficient reserves, then you and the other current owners may have to make up any shortfall or pay for the replacement.

So, we would also ask about planned expenditure and the building’s maintenance. You could then form a more accurate view of the likely costs in the future.

The cost of getting consents

Freeholders can use their homes more freely, subject to any restrictive title covenants, planning, and other laws. In contrast, as a leaseholder, you will be more restricted, and you may need to apply for your landlord’s consent for certain things. For example, if you want to make structural alterations. Generally, they will not be able to withhold consent unreasonably, and their costs for dealing with your application must be reasonable. However, these could still be higher than you expect, and the process can be time-consuming and stressful.

Reforms and the future of leasehold

Historically, leasehold has provided an effective way of ensuring obligations are mutually enforceable and is better suited for flats than houses. In recent years, problems have increased with some developers prioritising the creation of income streams over homeowners’ interests.

As a result, the Government has embarked on a major programme of reform, aimed at readdressing the balance. This includes making it easier for leaseholders to extend their lease, acquire the freehold, or to buy out their ground rent. The extent and timing of any changes is still uncertain, but the outlook is positive.

It is good to be aware of the stories highlighted in the media, but they are the exceptional cases. For many, leasehold ownership can still be a good way of getting onto the property ladder, regulating the use of a property with shared facilities. Having a solicitor who fully understands leases, and is up to date with the latest developments, means you can be confident about your purchase whatever its tenure.

Leaseholds may have more ongoing costs than freeholds. However, with the right professional advice, you should not have any unpleasant surprises.

For further information, please contact Clare Stanbury in the residential property team on 01395 220019 or email clare.stanbury@everys.co.uk.