FAQ

  QUESTIONS AND ANSWERS

  • Family Law

  • Conveyancing and Asset Management

  • Personal Injury

 

Top
  • Family Law
  • Is it very expensive?

Does not have to be. Usually expensive because couples do not agree and take matters through the Courts. Can use mediation or collaborative law.

  • The house is in my name, does he/she have any claim on it?

If married then yes. If not, it depends on contributions and intention. If neither apply may have no claim.

  • I am not married but have children, can I get maintenance?

Only for the children.

  • Can I change my child's surname?

Only if not married and the father of the child has not got parental responsibility. Always advisable to agree with other parent though and if not apply to the Court.

  • I am not married, what rights do I have in respect of my children?

None unless registered on birth certificate after December 2003 or signed a parental responsibility agreement or obtained parental responsibility through the Courts.

  • Will I get more money if I divorce him/her on adultery?

No. Behaviour is rarely relevant. Financial issues resolved on the basis of what is “fair” looking at all the circumstances.

  • If I go out with another man/woman, am I committing adultery?

No. Adultery is having a sexual relationship with someone of the opposite sex.

  • Can I divorce him/her on mental cruelty?

Correct definition is “unreasonable behaviour” which includes “mental cruelty” and is a list of reasons why cannot live with spouse.

  • Will I have to go to Court?

Not if everything is agreed. Can be dealt with on paperwork.

  • How long will it take?

Divorce – 4 to 5 months
Finances – 6 months – could be longer if not agreed.

  • The house is in my partner's name, can I get him/her out?

If there is domestic abuse/violence then yes but it may only be temporary.

  • Are pre-nuptual agreements binding?

Not in this country but evidence of intent and another relevant factor.

Top
  • Conveyancing and Asset Management
  • Do I need to make a Will? Surely because I'm married everything will go to my spouse?

If your estate is under £300,000.00 (the current threshold for Inheritance tax) and you are not concerned about your life savings being used to pay for nursing care should you need it in the future, all of your assets are in the joint names of you and your spouse and the two of you know the order in which you will die, then you could probably get away with not having a Will. However, if like most of the population you are uncertain about one or more of these issues then you should make a Will and keep it under regular review.

  • If I make a Will does it mean that my beneficiaries will not have to go through probate?

Not necessarily. If a person dies leaving more than £5,000.00 then probate will be necessary before the estate can be distributed.

  • What is probate?

Probate is a certificate from the court which confirms that the deceased’s Will is legally valid and that the estate can be distributed in accordance with the terms of the Will.

  • If my estate is over £300,000.00 will my beneficiaries have to pay tax on the whole of my estate?

No. The first £300,000.00 passes to your beneficiaries free of tax. Anything over £300,000.00 is taxed at 40%. So if an estate is valued at £400,000.00 tax will be paid at 40% on £100,000.00 giving a tax bill of £40,000.00.

  • What is a discretionary trust?

A discretionary trust is a trust which allows you to specify the people you would like to benefit from it but gives the trustees the power to decide which of the people you have named get what, how much and when. They can be set up either in a Will or during your lifetime.

  • Is it right that if I gave my house away more than seven years ago the gift cannot be challenged by the Council if I have to go into a nursing home?

No. The seven year rule relates only to inheritance tax. Basically if you have to go into a nursing home within 6 months of giving your home away then the council has the right to have the gift reversed. After 6 months the council loses the automatic right to have the gift overturned. However, if the council has reason to believe that the reason you gave your house away was to try to avoid having to sell it to pay for care then you can be assessed as though you still owned the property, regardless of how old the gift is, in which case you will be expected to pay for your own care.

  • So after seven years the gift will work from an inheritance tax point of view?

Not necessarily. The Inland Revenue has rules relating to gifts with reservation of benefits, often referred to as “GROB rules”. These rules state that if a person gives something away but still derives a benefit from the asset after the date of the gift then, for inheritance tax purposes, the asset is treated as still belonging to the person who has given it away! If you have given your house away and continue to live there rent free then you will have reserved a benefit and the gift will not be effective. The only way to get round the GROB rules in this scenario would be to pay a true rent for the property after you have given it away.

  • What is a Lasting Power of Attorney?

Sometimes people wish to plan ahead and set out in advance what they would like to happen should they become unable to make decisions for themselves in the future. A Lasting Power of Attorney (LPA) is an important legal document that enables a person who has capacity and is over 18 (Donor) to choose another person or people (Attorney(s)) to make decisions on their behalf. There are 2 different types of LPAs:
• A property and affairs LPA is for decisions about finances, such as selling the Donor's house or managing their bank account; and
• A personal welfare LPA is for decisions about both health and personal welfare, such as where to live, day-to-day care or having medical treatment.

  • I have a relative who has dementia. Should they make an LPA?

Sadly it may be too late. In order to make a valid LPA a person must have sufficient mental capacity to understand the document they are signing. The ideal time to make an LPA is when you are fit and well and have all your faculties.

  • So what happens when a person lacks the capacity to make a valid LPA but can no longer manage their financial affairs?

It will be necessary for someone to apply to the Public Guardianship Office (also referred to as the Court of Protection) for a Deputyship Order. The Order will appoint someone to act as Deputy for the incapacitated person. The Deputy will have to prepare annual accounts for the Court to show all the money they receive and pay out on behalf of the patient.

  • What is a Home Information Pack?

From 14 December 2007 it became compulsory for anyone advertising a property for sale to provide a Home Information Pack and make it available for inspection by any potential purchasers.  By Law the pack must include:

an index
a sale statement (which gives details of the seller’s identity and in what capacity they are selling the property)
details of the legal title to the property (usually a copy of the Land Registry Certificate of Ownership)
a local search result
an energy performance certificate

This pack will often contain information which your conveyancing solicitor will use to pre-empt any potential problems, so do not be afraid to ask your solicitor to review the pack for you before making an offer to purchase the property.

  • My offer has been accepted by the Vendor, what do I do now?

First of all you should let the Estate Agent know the name and address of the conveyancing solicitor you intend to use.  Do not be afraid to shop around for conveyancing quotes.  Most law firms are happy to provide free quotations.  Be aware that some firms of solicitors pay estate agents to refer work to them.  If an estate agent tries to point you in the direction of a particular firm, you are entitled to ask for full details of any referral agreement that the estate agent has with that firm.

You should also at this stage begin to think about how you are going to finance the purchase.  If you require a mortgage, then seek out an independent mortgage broker who can search the market for you and find the most competitive deal for you to meet your particular circumstances.

 
  • What will my solicitor need to know from me at the beginning of the transaction?

The estate agent will usually provide “Particulars of Sale” to your solicitor.  These particulars will confirm the price you have agreed to pay for the property and details of the solicitors who are acting for the Vendor.  You should however contact your solicitor as soon as possible to let them have your full contact details.

To comply with money laundering regulations, your solicitor will need to verify your identity and will therefore want to see from you at an early stage a copy of your passport or driving licence and a utility bill or bank statement.

Your solicitor will probably also want you to make a payment on account of the search fees and typically this is between £200 and £250.

  • Why do you have to do searches against the property?

Most of the searches carried out during a conveyancing transaction are done before you enter into a legally binding contract to buy the property.  The pre-contract searches as they are often referred to, will examine whether or not there are any proposals for the area in which the property is situated which may have an adverse affect of the property’s value.  The searches will also verify whether the property has had any development work carried out to it in the past, that those works had all the proper planning consents and building regulations approval.  The searches will also confirm whether or not the road on which the property stands is maintained by the Local Authority and whether the drains which serve the property are private or public.  The standard search packs also includes an environmental report which will give details of any adverse environmental situations in the area which may affect the property, such as land fill sites, radon gas measures and industries operating within the area.

If anything disclosed by the searches puts you off buying the property then you are free to walk away before making an expensive mistake.

  • When do I become legally committed to buying the property?

Exchange of contracts is the point at which the buyer and seller both become committed to the agreement.  Your solicitor will not commit you to the contract until the legal title has been investigated and found to be in order, all the results of the pre-contract searches are back and clear and your mortgage company have issued a satisfactory mortgage offer to you.

Once the solicitor has checked off all these items you will be asked to sign the contract.  At the same time the sellers will sign their part of the contract and on exchange of contracts each solicitor swaps their client’s part of the contract for the other parties’ part of the contract.

On exchange of contracts a completion date is agreed, which is typically five to ten working days after the exchange of contracts.

  • Do I have to pay anything on exchange of contracts?

The standard conveyancing contract provides that the purchaser must pay a 10% deposit upon exchange of contracts.  If you are borrowing more than 90% of the purchase price from your mortgage company it maybe possible for your solicitor to negotiate a lesser amount to be paid on exchange of contracts.  You should therefore let your solicitor know as early possible if you are not providing at least 10% of the purchase price from your own money.

  • What happens on the day of completion?

On the day of completion your solicitor will receive your mortgage funds from your lender.  Once the mortgage funds have been received, your solicitor will be in a position to pay the balance of the money to the seller’s solicitor.  The money is usually sent to the seller’s solicitor’s bank by a telegraphic transfer, which is an electronic transfer of money.  Once the seller’s solicitor receives the money they will then release the keys to you and you can then begin the process of moving in.

  • What does my solicitor do after completion?

The first thing your solicitor has to do after completing your purchase is to prepare a Stamp Duty Land Tax return and send it to the Inland Revenue, along with a cheque for any stamp duty that is payable.  Provided the Inland Revenue are satisfied that the correct amount of stamp duty has been paid and that the Stamp Duty Land Tax return has been filled in correctly, they will send to your solicitor a certificate confirming a correct return has been filed and any stamp duty paid. Once the solicitor has that certificate then an application can be made to the Land Registry to register your ownership of your new property.

  • Will I get the title deeds to the property?

Most lenders these days do not insist on keeping the title deeds to the property.  Therefore after your ownership has been registered with the Land Registry your solicitor may well write to you asking you to call at the office to collect the title deeds.  You should keep the title deeds in a safe place because they may contain information that will be required when you ultimately sell the property.

  • I am buying a leasehold property.  In addition to the ground rent I have been asked to pay towards a service charge.  What is this?

Service charges are most commonly found in leases for flats or apartments.  Typically a management company will be responsible for cleaning and maintaining common parts of the building in which the flat or apartment is situated.  For example this may be the weekly cleaning of the carpets, the maintenance of any lift serving the flats or apartments, the cleaning of the windows and the decorating from time to time of the hallways and stairways.

In order to pay for this service, the management company will levy a service charge on each and every flat or apartment in the block.  In other words, the service charge is your contribution towards the upkeep and maintenance of the common parts.

The management company must provide each flat or apartment owner with a copy of the annual accounts.  These accounts will show all the money the company has received in and the money it has paid out to buy the various services.  It is extremely important that you keep copies of these accounts because when you come to sell the property you will be asked by your solicitor to provide the last three years management accounts for your flat or apartment.

  • I am going to extend my property.  Do I need to obtain any permissions before I start the work?

Your architect should advise you on whether or not it is necessary to apply for planning permission for the proposed development.  Even if planning permission is not required, the proposed work will require building regulations consent.

Your architect will probably not ask you whether anyone else’s consent to the development is needed even though this may be relevant.  If you live in a leasehold property it is more than likely that the lease will require you to obtain the ground landlord’s permission for any proposed extension or development.

Even if you live in a freehold property, there may still be covenants affecting the property which require you to obtain the consent of some person or company to alterations or additions to the property.  If you are in any doubt whatsoever, you should refer the matter to your solicitor for advice.

If you find that you need to obtain the consent of a ground landlord or some other person or company, the best way of obtaining that consent is to send a copy of your architects plan showing what is proposed, together with a covering letter requesting consent to the proposed works.  You will probably have to pay a fee for granting of the permission and when you have the letter of consent, please ensure that you keep it safely as you will need to produce it to your solicitor if you ever sell the property in the future.

 

Top
  • Personal Injury
  • What can I claim for if I am injured?

As well as compensation for the injury itself, you can also claim compensation for things like loss of earnings, pension losses, medical treatment, care and assistance and out of pocket expenses.

  • How much will I receive?

The amount of compensation that you will receive depends on the severity of your injury. Once you have been medically assessed it is possible to give you an idea of the compensation levels.

  • What is a Lasting Power of Attorney?

Sometimes people wish to plan ahead and set out in advance what they would like to happen should they become unable to make decisions for themselves in the future. A Lasting Power of Attorney (LPA) is an important legal document that enables a person who has capacity and is over 18 (Donor) to choose another person or people (Attorney(s)) to make decisions on their behalf. There are 2 different types of LPAs:
• A property and affairs LPA is for decisions about finances, such as selling the Donor's house or managing their bank account; and
• A personal welfare LPA is for decisions about both health and personal welfare, such as where to live, day-to-day care or having medical treatment.

  • I have a relative who has dementia. Should they make an LPA?

Sadly it may be too late. In order to make a valid LPA a person must have sufficient mental capacity to understand the document they are signing. The ideal time to make an LPA is when you are fit and well and have all your faculties.

  • So what happens when a person lacks the capacity to make a valid LPA but can no longer manage their financial affairs?

It will be necessary for someone to apply to the Public Guardianship Office (also referred to as the Court of Protection) for a Deputyship Order. The Order will appoint someone to act as Deputy for the incapacitated person. The Deputy will have to prepare annual accounts for the Court to show all the money they receive and pay out on behalf of the patient.

Top

 

Top

Simpson Sissons & Brooke LLP

43 Townhead Street, Sheffield, S1 2EB    |    Tel: 0114 241 3970    |    Fax: 0114 275 1879    |    Email:

This site is designed by Effective Internet Ltd.

Solicitors Sheffield, UK solicitors, Sheffield solicitors, best solicitors Sheffield Personal Injury claim solicitors Sheffield, UK personal injury solicitors claims advice Family Law, Ancillary Relief, Child Care Solicitors Sheffield UK