Recent research by Loughborough University shows a sharp rise in the so called ‘boomerang’ generation of young adults returning to live at home until their late twenties or early thirties. This trend has continued as a result of the pandemic causing job losses, furlough, and university closures.

‘With the shape of family life changing, we are seeing an increase in queries about whether adult children living at home have any rights in a divorce,’ says Jo Scott a Solicitor in the family law team with Kidd and Spoor in Whitley Bay. ‘The law makes a number of provisions to ensure minor children continue to be cared and provided for following divorce, but more recently the children living at home are older. Unlike a tenant or lodger there is unlikely to be any legal formalities in place, such as a tenancy agreement, to stipulate the rights of a young adult living at home. This can create uncertainty for all involved as to what, if any, rights that adult child has.’

This can be a worrying and stressful time for all involved, especially if the family home needs to be sold. The child may be aggrieved and feel they deserve a share in the property, especially if they have contributed financially, or they may seek ongoing financial help from parents to rehouse themselves.

The rights of an adult child are extremely limited. The law does not impose an ongoing obligation on parents to maintain their adult child, except in certain specific circumstances, nor does the law require parents to continue to provide a home for them.

There are two main pieces of legislation governing an adult’s right to claim from their parents, namely the Matrimonial Causes Act and the Children Act.

Neither of these permit a child to obtain a legal interest in the family home on divorce but, under certain circumstances, they do permit an adult child to obtain ongoing maintenance from a parent which may assist with their housing needs.

Matrimonial Causes Act

Under the Matrimonial Causes Act, a child over the age of 16 can apply for maintenance from their parents provided a periodical payments order has already been made in their favour when they were a minor. This legislation only applies to children of married parents.

A periodical payments order is an order of the court stipulating a level of financial maintenance that should be paid to the parent with whom the child resides. Typically, it would be agreed at the time of separation. If there are no periodical payment orders in place, then an adult child cannot apply for maintenance under this legislation.

If a previous periodical payments order was in place, then an adult child can apply to the court. If successful, this would enable the child to obtain maintenance from their parent by way of periodical payments or a lump sum. These orders are rare and tend to be made where the child is continuing in education or undergoing training for a trade or profession.

The court also has power under this Act to grant maintenance in special circumstances. There is no clear definition of special circumstances, but previous cases have usually involved an adult child with a disability. The court tends to be sympathetic to cases where that disability means they will have an ongoing dependency or requirement for expensive medical equipment, treatments, and employment of specialist support.

Children Act

The Children Act provides a potential alternative route, especially when the parents have not been married. There must not have been a maintenance order in place while the child was under 16. If there was then, perhaps bizarrely, an adult cannot apply now.

It enables an adult child to seek maintenance from their parents if they will be or are in further education or training for a profession or vocation, or, if there are special circumstances to justify making an order. What constitutes special circumstances will be the same as in the Matrimonial Causes Act.

Again, this order can be for periodic payments or a lump sum. Unlike for minor children, it does not provide rights or interests for the adult child in the family home.

What are the considerations?

The considerations for both the Acts are very similar. If you are entitled to apply, then the court will assess the following:

• the income and earning capacity of each parent;
• the financial needs and obligations of each parent;
• the child’s financial needs and their own ability to generate an income now and in the future;
• any physical or mental disability of the child; and
• any education or training they intend to undertake.

This will necessitate a disclosure by both parents and the adult child of any assets they hold and their incomes. The court is not limited in the amount it can award, which will be proportionate to the needs of the child.

Can an adult child ever claim an interest in the family home?

It is possible for an adult child to bring a claim ‘in equity’ stating they have a right over the family home. This is a civil action in which the adult child claims that, although they are not a legal owner of a property, it is only fair and just because of assurances they were given and actions they took that they could stake a legal interest in the property.

This type of situation can arise in a number of ways. Typically, it involves the situation where there is a family-run farm. A child may have given up the opportunity of gainful employment to work for a low wage on the farm after an assurance that the farm would be theirs one day. They may have made several sacrifices and even investments in the farm business on the basis of promises made to them. If that case arose, then the parents making those promises maybe found unable to deny that an interest in favour of their child exists. The circumstances could also arise in other family-run businesses which are tied to the home, such as a hotel or garden centre.

The adult child may also be able to bring a claim if they have invested heavily in the house on the assurance it would be theirs. They may have extensively renovated the house, built an extension or annex, or modernised electrics and heating at substantial cost.

Cases in equity can be costly and difficult to quantify. It is important that early advice is sought in order to avoid a lengthy legal dispute.

In conclusion

While adult children may have few rights for financial maintenance from their parents, it is no doubt a stressful time for all the family when parents go through a divorce. Adult children may even be burdened with more of their parents worries and feelings as they are not shielded in the same way as minor children.

If an adult child has invested in your family home, then recognising this at an early stage can save significantly in legal costs. It is important to open dialogue early and ensure adult children are aware of any potential house sale in order that they can make their own arrangements in good time. After all, maintaining a good relationship with your children will be of paramount importance.

For further information, please contact Jo Scott in our family law team on 01912970011 or email cbennett@kiddspoorlaw.co.uk.

Sewers and human waste may not be the first things you think about when looking for a new home, but many rural and semi-rural properties do not have mains drainage and so rely on a septic tank. This can have important legal, practical, and costly implications, particularly since environmental regulations could mean that an old system is now unlawful.

Here Christine Blenkinsop, a residential conveyancing expert with Kidd and Spoor Solicitors in Whitley Bay considers the rules relating to septic tanks and why they could be important when buying a home or a holiday property in the countryside.

Septic tanks and water quality

If you are buying a property without mains drainage, you will want to make sure it has an adequate way of disposing of waste. Nobody wants raw sewage backing up into their new home! However, it is also important to ensure that the waste system meets all relevant legal requirements.

Most domestic non-mains sewage systems must comply with environmental protection legislation. Different criteria apply depending on the type of system, its age, and whether it discharges into the ground or directly into a water course like a ditch or a stream.

A septic tank is one type of waste system where a property is not on a mains sewer, and many septic tanks are basic and tend to be associated with older properties. In simple terms, they work by collecting waste in underground chambers. Solids settle at the bottom and start to decompose while the wastewater drains off, either into the soil through a leach field or into a water course. However, the latter can give rise to problems of contamination and a septic tank which discharges directly to surface water is now unlawful.

The regulations aim to protect water quality, and in the event of contamination the Environment Agency could fine you and force you to upgrade your system or even to replace it completely.

 

Identifying the waste system at a property

A seller has a duty to tell a new owner about the waste system and to give details of its maintenance requirements, but many homeowners are still unaware of this or may not volunteer the information early on, as attention is often focused on the house more than any grounds.

Fortunately, the searches and enquiries which your solicitor will make as part of the conveyancing process should confirm whether a property has mains drainage. The property information form, which the seller completes, should also give details of any off-mains waste system, including the date of its installation and when it was last serviced.

When viewing a property, ask the seller or his agent if it is on the mains sewer. If it is not, ask about the waste system.

Should you decide to buy, let your solicitor know what he said the arrangements are, so she can then check this agrees with the results of the conveyancing searches. She can also investigate any potential issues. For example, a system may need rights over adjoining land or building regulations approval, and your solicitor will check these are in place. Clarifying matters early on can help speed the conveyancing process up, give you reassurance, and head off potential problems.

How a septic tank could affect your negotiations

In most cases, a correctly installed well-maintained system, is unlikely to cause any issues. Even where a property has an older septic tank, provided it does not discharge directly into surface water, then it may still meet the relevant standards.

However, where a septic tank discharges straight into a watercourse, or otherwise breaches the regulations, you may want to discuss this. For example, you may want to ask the seller to bring his system up to current standards before you complete your purchase or seek a price reduction to reflect the cost of putting in a new system yourself.

In some cases, it may even be possible to connect into the mains or to bring the old system up to standard, for example by installing a new drainage field. Talking to a specialist engineer or environmental consultant can help you work out your options, and the cost implications.

How your solicitor can help

If you are buying a property which has off-mains drainage, then it is important to find a solicitor who really understands the issues involved as environmental legislation is complex.

A good solicitor will not only ensure the arrangements meet the relevant statutory requirements, but that any new proposals will comply. For example, if a septic tank needs to be reconfigured to include a leach field, they will check that your title includes or has rights over the relevant land. This will avoid the solution to an old, non-compliant, septic tank creating unexpected problems. You can then relax without having to worry about one of the less pleasant, but vital, aspects of ownership.

For further information about buying or selling your home, please contact Christine Blenkinsop in the residential property team on 01912970011 or email cb@kiddspoorlaw.co.uk

If you are someone’s executor, then it can be tempting to try to administer the estate yourself with a view to saving money. If the estate is simple and you are comfortable with the legal and tax regulations, then this may be fairly straightforward.

However, executors are personally liable to the beneficiaries and to HMRC in regard to inheritance tax, so it is important to be aware of the pitfalls.

Nigel Miller a Solicitor in the wills and probate team with Kidd and Spoors in Whitley Bay who has been advising on probate matters for 20 years, sheds a light on some of the mistakes which he has seen people make over the years albeit with the best intentions.

Failing to use the correct will

Before starting the estate administration process, you must ensure that you have the deceased’s most recent valid will.

It may be that they told you exactly where to find this but, if not, you must locate the original. If the deceased has changed their will several times, they could have copies of several different wills with their paperwork. If you administer the estate according to old will terms, you may end up giving assets or money to the wrong people, which risks leaving the actual intended beneficiaries out of pocket and finding yourself liable for their loss.

If you are unsure which is the correct will, a solicitor can help you determine this. A solicitor can also confirm the validity of the will and advise you on searches you could undertake to ensure there is not a more recent valid will of which you are unaware.

An invalid will

As executor, it is your job to ascertain the overall validity of the will. If the will has not been signed or properly witnessed it will not be valid, and an earlier will should be found and administered instead.

There are other reasons why a will may be invalid, including if there are doubts regarding lack of capacity or undue influence, changing status with marriage or divorce. In some cases, part of a will may be valid whilst other parts may not.

Failure to locate all beneficiaries

Some wills leave gifts to members of a class. This means that the beneficiaries are not individually named. It will, therefore, be up to you, as executor, to locate all the class members. This may involve making enquiries with known beneficiaries and family members and will extend to taking all reasonable steps to ascertain all of the beneficiaries. If you fail to take all reasonable steps and a disappointed beneficiary later comes forward, you would be personally liable for their loss.

A solicitor can help you to determine what counts as ‘all reasonable steps’ in the circumstances.

Failure to follow the will terms

It is important that you follow the terms of the will exactly, but mistakes in this regard are very common.

You must deal with all the gifts and trusts according to the instructions in the will, and possibly also a letter of wishes. For example, there may be limitations on when and to whom money can be paid. Sometimes, part of a will may seem like a straightforward gift, but in fact it may be a trust. While a solicitor is trained to spot this, the difference is subtle and may not be noticed otherwise.

Whilst there are circumstances under which the terms of a will can be altered, this must be done using formal legal procedures. It is not simply up to an executor to change a testator’s wishes after death, and you should consult a solicitor if you think this is necessary.

Failure to keep estate funds separate

Too often executors place monies that have been collected in from the estate in their personal bank account. While this is usually only done temporarily and without any malice, it does amount to a breach of executors’ duties. Opening an executors’ bank account is a simple process and this should be done before any estate assets are collected.

 

 

Failure to collect all the assets

Sometimes small sums can be held in accounts that the testator may have forgotten, but as executor it is your duty to track down these accounts and make sure that the sums are claimed and distributed to the beneficiaries.

It can also be tricky to track down some digital accounts if you cannot find login details. Although financial institutions should have clear processes, they are not always straightforward to follow if you do not have all the necessary information.

Inaccurate valuations

Another very common mistake made by executors is failing to obtain accurate and up-to-date valuations. Outdated or estimated valuations can affect the value of the estate and mean beneficiaries may miss out. Valuation mistakes may also affect the inheritance tax that is paid which could result in you, as executor, being personally liable for an underpayment.

If you are the executor of an estate, it is imperative that you understand your duties before you commence the estate administration. Whether you require some initial guidance or would like a professional to deal with the entire process on your behalf, our solicitors can help you ensure that you do not fall foul of some of the most common probate mistakes.

For further information, please contact Nigel Miller in the wills and probate team on 01912970011 or email nm@kiddspoorlaw.co.uk

According to the Bank of England, the biggest issue for most first-time buyers is insufficient savings. Last year saw a sharp jump in the average amount of a deposit required to get a mortgage, with some people having to provide a deposit equivalent to a full year’s salary.
To help tackle this problem, the Government is introducing a new mortgage guarantee scheme until December 2022. Here Christine Blenkinsop a Conveyancer in the residential property/ conveyancing team with Kidd and Spoor, looks at the latest proposal and other ways to help you buy your first home even if you only have a small deposit.

The 95 per cent mortgage guarantee scheme
During the pandemic, lenders have tended to ask for large deposits and 95 per cent mortgages have virtually disappeared. The new mortgage guarantee scheme, announced in the Spring Budget, is designed to encourage lenders to start offering higher loan-to-value mortgages.
Under the scheme, the Government will guarantee that part of your mortgage which is over 80 per cent of the purchase price, thereby making the loan less risky for the lender.
If you default on your mortgage payments, the lender may ultimately sell your property. With a 95 per cent mortgage, there is a higher risk the sale proceeds will not cover the outstanding loan if property values fall. If you cannot make up the difference, then ordinarily the lender will suffer the loss.
Under the new scheme, the Government will compensate the lender for up to 15 per cent of the original purchase price (the borrower’s deposit covering the first five per cent).
The mechanics may sound complicated, but you do not need to worry too much about them: it will be down to individual lenders to develop and administer mortgage products which meet the Government’s detailed criteria. Most major banks have already said they plan to launch 95 per cent mortgage deals, with other lenders likely to follow suit.
To benefit from the scheme, you must satisfy certain conditions as a borrower. For example, you must:
• be buying your main home, not a holiday home or a buy-to-let investment;
• be buying a property in the UK for £600,000 or less;
• borrow between 91 per cent and 95 per cent of the purchase price;
• meet standard borrowing requirements to prove you can afford the repayments; and
• take out the loan during the term of the scheme, between April 2021 and December 2022.
It is expected that first-time buyers will find it easier to secure finance for a home purchase even with a small deposit.

Some words of caution
You should always consider carefully how any funding arrangements would apply to your personal circumstances, and a 95 per cent mortgage may not be the best option for you.
A high loan-to-value mortgage generally means paying a higher rate of interest, so always shop around and take independent financial advice before signing up for a deal. The new scheme guarantees the lender against loss, not you as the borrower.
As with any mortgage, if you cannot keep up the repayments, you risk losing your home and will still have to pay your lender’s costs. So, it is vital to check you can afford the repayments even if your circumstances change or interest rates go up.
You should also think about what could happen if property prices fall in the future. With only five per cent equity in a property, you could end up in negative equity. Negative equity is when your home is worth less than your outstanding loan. Being unable to pay off your mortgage out of the sale proceeds could stop you moving home in the future. You may also find your options to remortgage reduced, leaving you having to pay a higher rate of interest.

Consider the alternatives
If you can afford it, and you think your income is stable or will increase in the future, then a 95 per cent mortgage may still be an attractive option. Even so, it is worth considering some of the alternatives.
Help to Buy
A Help to Buy equity loan is a government scheme which could help you buy a new home with as little as a five per cent deposit. Unlike the mortgage guarantee scheme, you typically only borrow 75 per cent of the purchase price from a commercial lender. The remaining 20 per cent is funded by an equity loan from the Government. You must pay this back when you sell, but the repayment would be based on 20 per cent of the sale value of your home. So, you could end up paying more, or less, than under a conventional arrangement depending on whether house prices go up or down.
Saving for a larger deposit
Saving for a larger deposit may mean delaying your home buying plans, but it could give you a wider choice of properties and mortgage products. It may also reduce the risk of negative equity. Using a Lifetime ISA could help you save towards your first home in a tax efficient way with the Government contributing up to £1,000 each year.
Shared Ownership
Shared Ownership is another affordable home ownership scheme. You buy a share in a property, usually from a housing association, and pay an adjusted rent on the rest. When you can afford it, you may buy additional shares until you own your home outright.
Help from family and friends
Sometimes parents or other family members may offer to help with a gift or loan, or by acting as guarantors. However, this type of assistance needs careful consideration so that everyone is clear on the tax and legal implications.
Buying with others
Pooling resources with a partner or a friend is another possibility, but you must agree how you will share responsibility and ownership of the property. You will also need to decide what should happen in the future, for example, if one of you wants to sell.
If you are buying a property jointly, or with help from someone else, always discuss your intentions with your solicitor. They can ensure the legal documentation protects your interests. This will allow you to enjoy your new home in the way you planned and avoid any disputes in the future.

How we can help
Buying your first home is a milestone, one of the biggest financial and emotional commitments you will ever make. So, it is important to choose a solicitor you can be confident in, someone who can give your purchase the individual attention it deserves.
We can navigate all the legal aspects of your purchase and support you on your journey to home ownership.
For further information, please contact Christine Blenkinsop in the residential property / conveyancing team on 01912970011 or email cb@kiddspoorlaw.co.uk

Can we finalise our divorce before the house is sold?

For the majority of people, their most significant asset is the family home. So, it is not surprising that when it comes to dealing with the financial consequences surrounding divorce, questions about what will happen to the matrimonial home are usually top of the list.

In most cases the home will be dealt with in one of two ways – either it is transferred to one spouse, and the other spouse will receive a lump sum of money or an asset such as a pension pot or holiday home in exchange, or it is sold and both spouses receive a division of the sale proceeds.

Where a property has to be sold, external factors come into play, such as the property market, the economy, a pandemic, or tax incentives such as the stamp duty holiday. These can affect how quickly a house will be sold, and raise the question of whether a divorce can be finalised before a house is sold?

Jo Scott a Solicitor in the family law team with Kidd and Spoor in Whitley Bay says ‘It is commonplace for agreements to be finalised before the matrimonial home is sold, and we can advise on things that you will need to consider in this scenario.’

Occasionally an agreement may be reached between spouses, or a court order made, stipulating that there will be a delay in selling the home until a certain event has occurred. This could be, for example, when the youngest child of the family reaches the age of 18 or finishes full-time education.

These types of agreement are increasingly less common, with most people preferring a clean break. The focus in this article is not on an intended delay to the sale, but on one where an unforeseen delay or obstacle occurs to prevent selling the home straight away. This is commonly due to the house being on the market, but without a purchaser being found.

Lessons from the case of Derhalli v Derhalli

If it is intended to sell the home, it is possible for you to proceed and finalise your divorce and financial division, however the recent case of Derhalli v Derhalli [2021] shows that some additional considerations must be taken.

In this case the husband and wife had reached an agreement over their matrimonial finances. Amongst other things, the agreement stipulated that Mrs Derhalli was to receive several million pounds upon the sale of the matrimonial home in West London, which was in the sole name of Mr Derhalli. The consent order was reached in 2016 but the house was not actually sold until 2019 due to a delay caused by the Brexit vote.

During these three years, Mrs Derhalli remained in the home and her ex-husband sought to recover a rent from her to cover this period. He argued that he should be entitled to £5,000 a month rent which amounted to around £600,000. Mrs Derhalli did not agree and argued that she was entitled to remain in the home until it was sold.

The Court of Appeal examined the consent order and found that there was nothing to prevent Mrs Derhalli remaining in the former matrimonial home until it was sold.

This case provides a cautionary tale to ensure that all eventualities are considered before entering a financial settlement on divorce, especially if the home has not yet been sold. The situation would have been different if a clause had been included in the agreement stipulating his wife must pay a rent if she continued to reside in the home. Both parties would also have saved extensive legal costs and time had the agreement stated what would happen in the event of the house sale being delayed.

Considerations when selling a matrimonial home after divorce

Not only will you want to consider who will reside in the property until sale, but you should also give some thought to other questions which may arise, such as:

• Who will pay the mortgage and rates?
• Who will maintain the property and cover the cost of any repairs?
• Who can have access to the property?

You should bear in mind that there can be other difficulties to consider if the house is to be vacant until it is sold, as it will still require a level of maintenance and heat and may be harder to sell if it falls into disrepair.

In addition, if like Mrs Derhalli you are not the legal owner of your home, we can take additional steps to secure your rights. This may involve us registering your interests at the Land Registry to help prevent your spouse selling or borrowing further against the house.

How we can help

Obtaining early legal advice on your divorce and finances is always important to ensure you obtain the best outcome possible for you and your family.

We are able to advise you on what needs to be included in your agreement should you wish to finalise matters prior to the matrimonial home, or any other assets, being sold.

We can also advise you on how you can sell the matrimonial home before you finalise any financial agreement should that option best suit you. This may be your preferred option if you have a buyer lined up and the housing market is uncertain.

If you sell before a financial agreement is reached, then the proceeds of sale will usually be held by agreement between solicitors pending finalisation by way of a consent order court direction.

For further information, please contact Jo Scott in our family law team on 01912970011 or email cbennett@kiddspoorlaw.co.uk

CHANGES AT KIDD AND SPOOR!

KIDD AND SPOOR SOLICITORS OF WHITLEY BAY ARE DELIGHTED TO WELCOME PHILIP WALKER AS A DIRECTOR WITH IMMEDIATE EFFECT. PHILIP JOINS CO-DIRECTOR NIGEL MILLER, AND THEIR COLLEAGUE NOEL DILKS BECOMES CONSULTANT.

PHILIP HAS BEEN WITH THE COMPANY FOR ALMOST THREE YEARS AND WILL BE A   VALUABLE ADDITION TO THE BOARD, MAINTAINING KIDD AND SPOOR’S UNRIVALLED LEVELS OF SERVICE AND CLIENT CARE.

CONGRATULATIONS PHILIP!

 

Where will our children live if we separate?

Following separation parents usually want to minimise any disruption to their children, ensuring that they soon settle into a new routine – whether that is in the existing family home, or following a move to a new home.

Where your children will live may be an obvious or straightforward decision, for example if one parent works abroad or has a job which makes it difficult to accommodate childcare. For other families, the decision can be complex especially if parents feel strongly that the children should continue to reside with them.

If you find yourself in this scenario and fear that an agreement will never be reached, then it is wise to obtain early expert legal advice on the best way forward. Jo Scott at Kidd and Spoor Solicitors in Whitley Bay has a wealth of experience and can help guide you through the legal principals and advise on the best approach.

Whether your relationship ended badly or you are on civil terms with your former partner, it is important to keep talking regarding your children. There are sometimes reasons why this is not possible, but if this can be achieved it will usually lead to a better outcome for your children. Poor communication between parents can be upsetting for children as they may feel like a go between or that they have to pick sides. There are likely to be numerous occasions during your children’s lives, and even into their adulthood when they will want both of their parents by their side, such as school plays, sports days or even later in life at their graduation or marriage. Keeping things on the right footing can make a difference to your children in the short and long term.

Even if you have good communication with your former partner, it is still wise to obtain early legal advice. Your solicitor can advise you on the welfare and practical considerations you should take account of when discussing your children’s future living arrangements with your former partner. You will need to decide where the children should live, and how much time they will spend with each parent, and which parent will be responsible for collecting and returning them from visits. Some focus should also go on longer term plans such as birthdays, Christmas, how school holidays will be split and how the children will be supported financially.

Depending on the age of your children, significant weight may also be given to their own wishes and feelings on where they want to live. For example, if your children are in school and have a circle of friends in the area, they may be unhappy at the thought of moving to a new area. They may also be distressed if such a move means they are unlikely to see their other parent regularly.

If you are able to agree matters as parents, then it is possible to have that formalised into a written agreement which can then be made into a court order. This will ensure that the terms are properly recorded, and it should lead to fewer problems in the future.

On occasion it may not be possible to reach an agreement. If so, your solicitor can advise you in relation to your options for resolving the dispute. Mediation will enable you to discuss your children’s arrangements with the assistance of a trained mediator who acts in a neutral capacity. If mediation is unsuccessful then we can advise you on applying to court to seek an order stipulating your children’s living arrangements. The court will place the welfare needs of your children first, as this is its paramount consideration.

Each family is different, and your solicitor will be able to discuss creative options to best suit your own circumstances. For further information, please contact Jo Scott in the family law team on 01912970011 or email cbennett@kiddspoorlaw.co.uk

Meeting your conveyancing solicitor, what you need to prepare

Preparing and collecting all the information for your first meeting with your conveyancing solicitor, whether that meeting is face-to-face or virtual, will get your transaction off to a good start.

Here Philip Walker a residential property solicitor with Kidd and Spoor in Whitley Bay looks at how you can help to get things moving quickly.

Prepare ID and source of funds evidence

Your solicitor cannot start work until she has checked your proof of identity. These ID checks may seem a bit bureaucratic, but they are legally required to comply with anti-money laundering regulations and will help protect you against fraud and identity theft.

Requirements vary from firm to firm, so check with your solicitor beforehand and make sure you have the relevant documents. Typically, you will need proof of your identity, which can be either a current passport or full driving licence. You will also need proof of your home address, for example, a recent utility bill, council tax or bank statement.

Your solicitor may use an online verification tool. This will match your ID against your home address, instead of relying on a paper statement, which can make the process quicker and give you additional peace of mind.

If you are buying a property, you will also need to show where your funds are coming from. Your solicitor will explain this in more detail, but the aim is to prove your money has a legitimate source. So, for example, if you have saved for a deposit, then you should produce bank statements showing regular transfers into your account.

Respond to requests for funds promptly

One of the first things your solicitor will discuss with you is the various costs and fees. These will include disbursements for searches and application fees, and your solicitor may ask you to pay some money on account. This will allow her to start work and make any necessary applications straight away. So, check the bank details carefully and transfer any requested sums promptly.

Agree and discuss timescales in advance

Let your solicitor know if you are working to a particular time frame, for example, if you wish to exchange before the stamp duty holiday ends.

It is not always possible to keep to the desired time frame, as progress will depend upon third parties and events you cannot control. Having a clear understanding of your aims and expectations at the outset will help her to manage your transaction more effectively.

Give details of the property and any lenders

The estate agent will usually send details of the terms agreed to both parties’ solicitors, but you should check they are correct. Ideally, do so before your meeting with your conveyancing solicitor. You can then flag up any discrepancies.

Provide details of your property’s title, including its registered title number if you know it, and the location of any deeds.

If you have a mortgage, or are taking one out, then you will also need to give her details of your lender.

Get your paperwork in order

If you are selling your home, your buyer’s solicitor will investigate your title and look for things which could affect his client’s use of the property. Tell your conveyancing solicitor about any title problems you are aware of so she can start addressing them proactively.

She will also ask you to complete property information form which is designed to give the buyer detailed information about your property. It is unlikely that you would complete this at your first meeting, but you may need to discuss some of the answers with her and should gather as much information as possible in advance.

This could include:

• copies of planning permissions or building regulation consents for any alterations or improvements to the property;
• your current energy performance certificate or a link to access it;
• for double glazing, installed, after 1 April 2002, a certificate issued under the Fenestration Self-Assessment Scheme (FENSA) or some other scheme, or building regulations consent;
• details of any unusual conditions attached to your building insurance, and any claims made under it;
• any notices you have received which affect your home or nearby property;
• copies of any guarantees or warranties you have, and details of any claims made under them; and
• details of any agreements affecting your property. For example, if you contribute towards the cost of a shared driveway or road.

If the property you are selling is leasehold, you must also complete a leasehold information form. The information you need to provide includes:

• a copy of your lease, and any variations of its terms;
• details of your landlord and managing agent, including their contact details, and any correspondence with them;
• statements and receipts for ground rent and service charge for the past three years;
• a copy of the buildings insurance policy and schedule and, if you arrange the policy, a receipt for payment of the last premium; and
• if you own a share of the freehold, details of the corporate structure, for example the memorandum and articles of association of the company, and your share certificate.

Selling a leasehold property can take longer than a freehold one because of the additional parties and work involved. This means getting as much information as possible ready in advance is even more important.

And finally …

Preparing well for your first meeting will get your transaction off to the best possible start, but please do not hesitate to ask for clarification if there is anything you do not understand.

For further information about buying or selling your home, please, contact Philip Walker or Christine Blenkinsop in the Conveyancing team on 01912970011 or email pw@kiddspoorlaw.co.uk or cb@kiddspoorlaw.co.uk

 

Deputyship – when a power of attorney is no longer an option

 

If your partner, a parent, or another close relative is losing their ability to manage their own affairs, then you may be concerned about how much you can help, particularly where financial matters are concerned.

If the person you care for has not made their own plans, such as by making an enduring or lasting power of attorney, no one will be able to access their funds or make financial decisions on their behalf. This can be particularly problematic when it comes to accessing money for day-to-day living.

‘Many people simply do not want to consider a future in which they are no longer independent. Others might not know who to appoint as an attorney or might worry about being a burden on their family’, says Nigel Miller, a Solicitor in the wills and probate team with Kidd and Spoor in Whitley Bay. ‘Whatever the reason, even if there is no power of attorney then you can still help by applying to become their deputy.’

 

Applying to be a deputy

Before making an application to become someone’s deputy it is imperative that you ensure they have not already made a power of attorney. Unless a sole attorney has died or lost capacity themselves, or an attorney has been removed by the court for reasons of misconduct, the court will not overrule the wishes of the person who has lost capacity.

It may simply be a case of looking through their paperwork to find out if there is an existing power of attorney. Alternatively or if you remain uncertain, you can find out from the Office of the Public Guardian if a power of attorney has already been registered.

If you are satisfied there is no existing power of attorney, you can apply to the court to become the person’s deputy. Providing the court is satisfied that the person no longer has the necessary capacity to be able to manage their own finances and that you are a suitable person to act for them, the court will appoint you.

How long does it take to be appointed as a deputy?

Applying to the Court of Protection to become someone’s deputy is a time-consuming process. From start to finish it typically takes around six months and until a final order is received you will not be able to make decisions on that person’s behalf.

Unless the person has already put direct debits or standing orders in place, this means that their bills cannot be paid until an appointment is made. Once you are appointed as deputy, you will be able to repay yourself for any bills that you pay from your own funds during this time. If you are unable to cover the cost of the bills, it is important that you contact the various creditors to explain the circumstances and make suitable arrangements.

However, the reason the application process is so lengthy is because the court has your loved one’s best interests at the forefront of its decision making. A deputyship application is subject to a much higher level of scrutiny than when someone makes a power of attorney. It is necessary to obtain a report as to the person’s capacity, in a format which is approved by the court.

You must also notify the person about whom the application is made, as well as their family or close friends, about your intention to make the application, following which the court allows them a set period in which to respond with any concerns they may have. Finally, the court will scrutinise your application and your own financial circumstances in order to ensure that you are the most suitable candidate to act as deputy.

Who pays the deputyship fees?

Because of the different parties involved along the way, deputyship applications are notoriously expensive.

Some costs, such as the cost of the medical report and the court application fee, have to be paid upfront. You will need to meet these costs, but you can reimburse yourself from the funds of the person about whom the application is made once you are appointed. Other costs, such as solicitors’ fees, can be paid once you have access to the person’s funds after a deputyship order has been granted.

Reporting requirements

One of the key advantages to becoming someone’s deputy, rather than being their attorney, is that you will be subject to a certain level of supervision. This is particularly useful if you have never acted as a deputy or attorney previously, as it provides some reassurance that the decisions you make are appropriate.

A deputy must submit an annual report to the Office of the Public Guardian, detailing the exact capital, income and expenditure that has taken place each year. The report does not require you to submit receipts, but you should keep these for your records as it will make completing the report much easier.

The reporting can be onerous, particularly in the first few years, but it serves to protect your loved one from any mistakes that might be made.

Insurance

Another level of protection that is afforded to the person whose finances you will be managing, is that you will need to take out insurance annually. The insurance policy is an expense of the person about whom the application is made and can be met from their funds. In the event that something does go wrong, such as if you were to use the person’s money in a way the order does not allow for – for example by making an unauthorised gift, a claim can then be made to pay back any lost funds to your loved one via the insurer.

The benefits of using a solicitor

If you are considering applying to become a deputy for someone, our solicitors can help you through the application process and beyond. You may wish to consider applying for a professional deputy to be appointed alongside you or in your place.

Though it may seem counterintuitive, costs are often reduced by appointing a solicitor to help with the application from the outset. Our team is used to making such applications, and we are aware of all the typical hiccups that might occur along the way.

Instructing a solicitor to make the application on your behalf means you can rest assured that the application process will run smoothly and that you will be appointed in the quickest time possible.

 

For further information, please contact Nigel Miller or Noel Dilks in the wills and probate team on 01912970011 or email nm@kiddspoorlaw.co.uk or nd@kiddspoorlaw.co.uk