john birkby and co

FAQ

CONVEYANCING

HOW MUCH WILL IT COST?
John Birkby & Co Solicitors will charge a fee based upon the sale or purchase price of your transaction with any additional work (fo example if part of the garden is occupied by the property but not included in the title deeds) charged on the basis of the time taken at an hourly rate of £150 plus VAT per hour.  We provide a detailed written quotation at the outset of your transaction. Unlike some firms we do not charge extra for filling in the Stamp Duty form, or the registration forms.
On a purchase however you will have to pay certain search fees depending on where the property is that you are buying and whether you are buying with a mortgage.  If you are buying a new property the builders will make a charge for providing their documents and if you are buying a flat, the landlord’s agents will probably make a charge for providing information. This list is not exhaustive.
Please remember that these fees are all payable to other organisations. They are not part of your legal fees and are payable whichever firm does your conveyancing.

For full informtion about our charges, the searches involved and links to obtain stamp duty and registration fees please see our webpage for "conveyancing".

HOW LONG WILL IT TAKE?
If you are buying an empty house and you have no sale then the speed of the transaction will only depend on how quickly you can get your mortgage and how quickly information is supplied by the other side. As soon as you have a chain, the speed will also depend on the same factors for every party in the chain, and the whole chain will only be as quick as the slowest of them.
As a guideline we would suggest that you expect a period of 8-12 weeks.

WHAT IS A CHAIN?
A chain is where for example, a first time buyer purchases a property from a couple that are also moving to a new property. Their sellers may also be moving, meaning that there are potentially four or five properties in a chain, each with their own solicitors, estate agents, mortgage lenders etc.  A chain can complicate a transaction, as so much information is required to ensure that all parties are able to exchange contracts and agree a date upon which the complete chain can move house.

WHO WILL CARRY OUT THE CONVEYANCING?
A named, fully qualified solicitor who will keep you advised throughout your transaction and will send you copy documents for information where appropriate. When it comes to signing the paperwork you can either come to the office to sign or the documents can be sent to you in the post.

WHAT IS EXCHANGE OF CONTRACTS?
Exchange of contracts is when the sale or purchase is legally formalised.  Until “exchange” either party can withdraw, but after exchange the parties are legally bound to sell or buy.  This is why so much work is carried out before exchange of contracts, to ensure that the purchaser of a property is obtaining a “good legal title”.  Any defects in title to the property are difficult to rectify after exchange of contracts.

WHAT IS COMPLETION?
A completion date generally forms part of the Contract and on exchange of contracts the completion date is agreed.  This is the date on which you move into your new property or vacate the old one. On the day of completion, you should be able to collect the keys from the seller and move into your new home.

WILLS

WHO CAN MAKE A WILL?

To make a valid Will you must be 18 or over and have the required ‘mental capacity’. This means that the person wishing to create a Will must have an understanding of the nature of their actions and its effects and the extent of their property.

WHAT IS AN EXECUTOR?
An executor has various responsibilities under a Will, which can be time consuming. Responsibilities include:

  • paying of the deceased’s debts
  • organising funeral expenses
  • arrangements for the deceased’s home, for example valuation and sale
  • establishing assets
  • paying beneficiaries and legatees in accordance to the Will

WHO CAN BE AN EXECUTOR?
A member of your family, your partner, a friend or solicitor may act as your executor. The executor must be over the age of 18.

HOW MANY EXECUTORS CAN I HAVE?
Up to 4 executors can act at a time. At least two executors are needed if their might be a trust to administer. You can appoint substitute executors if the first choices die before you.

CAN EXECUTORS BE BENEFICIARIES?
Yes, an executor may be a beneficiary in your Will and it is often appropriate that the main beneficiary is an executor. Alternatively you may wish to gift a sum of money to your executor conditional upon them acting as your executor.

HOW CAN I REVOKE MY FORMER WILL?
A Will can be cancelled simply by creating a new Will which states that all previous Wills are revoked. Your current Will will be automatically revoked if you marry or enter into a Civil Partnership. A clause may be added to stipulate that your current Will is not to be revoked by your intention to marry or enter into a civil partnership with the named partner.
Alternatively, a Will can be revoked by destruction, for example, by burning, tearing or otherwise.

WHO CAN WITNESS MY WILL?
You must sign the will in the presence of two independent witnesses who both watch you sign the will and then they must sign the will under your signature in your presence and in the presence of each other.  Any independent person may witness your Will. Independent means that they must not be related to the maker of the Will or be a beneficiary under the Will, or married to or a civil partner of any of the beneficiaries. It does not have to be a solicitor; it can be a neighbour or friend. However at John Birkby & Co we will witness your will.

WHAT HAPPENS TO MY WILL ONCE I HAVE SIGNED IT?
Once you have signed your Will and had it witnessed as part of the Will service, John Birkby & Co will then store your original Will in our Wills safe and then provide you with a copy.

WHAT HAPPENS IF I DO NOT MAKE A WILL?
A Will allows you to specify how you wish your estate to be administered once you pass away. If you have not made a Will when you die your estate (all that you own at the date of your death) will pass under the ‘Intestacy Rules’. These rules decide who should be entitled to your estate. It is important to note that these rules only apply to property that would normally pass under a Will had a Will been made.

PROBATE

WHAT IS PROBATE?
Probate is only granted where the deceased left a Will. The grant of probate of the Will is a Court Order that gives the executors of the Will the right to deal with the assets and property of the person who has died. For example, when you show the grant of probate to a bank they know they are dealing with the person who is allowed to handle the estate and they will allow you to close the deceased's account.

WHO TAKES CHARGE IF THERE IS NO WILL?
If the deceased did not make a Will, their estate will be shared out under the "rules of intestacy". These rules set out who deals with the estate and who benefits from it. There is a strict order of entitlement and we will advise as to who is entitled.
Where there is no Will the Court Order is known as a grant of letters of administration (as opposed to a grant of probate where there is a Will) and the persons appointed by the grant of letters of administration are known as administrators (as opposed to executors where there is a Will). You apply for a grant of letters of administration in the same way as you would apply for probate.

DO YOU ALWAYS NEED TO GET A GRANT OF PROBATE OR A GRANT OF LETTERS OF ADMINISTRATION?
In some cases you do not need to apply for a grant. This is when the person who has died left very little (usually under £5000) or else everything they own was held in joint names with someone whose share automatically passes to them.

HOW DO YOU APPLY FOR PROBATE OR LETTERS OF ADMINISTRATION?
The application is made to the Probate Registry and we would normally apply to the Registry in Manchester. The application is in the form of a statement of truth that the executors or administrators (as the case may be) need to sign. signed the statement is sent to the Probate Registry along with the original Will which is then retained by the Probate Registry. Once probate has been granted the Will becomes a matter of public record. Unless there has been any objection to the application lodged at the Probate Registry, the application generally takes around 4 weeks although at present there are delays at the Probate Registry which means that it has been taking 2-3 months to receive back the grant once it has been submitted.  The Probate Registry will charge a fixed fee of £155 in respect of the application and a further £1.50 for each additional sealed copy of the Grant.
If there is inheritance tax payable then the Inland Revenue account for inheritance tax purposes (see below) must be submitted before you can apply for the grant of probate or letters of administration. If there is no inheritance tax payable then an Inland Revenue return is still needed and this must be submitted at the same time as the application for the grant of probate or letters of administration.

DO ALL THE EXECUTORS NEED TO APPLY FOR PROBATE?
No. If an executor wishes to stand down then they can renounce probate and take no further part in the administration. However, they can only renounce probate if they have not intermeddled in the administration of the estate up to that point. If they have taken any part in the administration of the estate then they cannot then stand down.  Alternatively, power can be reserved to an executor. This means that the executor to whom power is reserved does not join in the application for the grant of probate. It does not mean they have renounced their right to be an executor completely, but instead that they have reserved the power to extract a grant in the future if they wished to do so.If an executor named in the Will has predeceased the testator then their appointment lapses. Where possible please let us have a copy of the death certificate of the executor who has died.

WILL YOU HAVE TO SUBMIT AN INLAND REVENUE ACCOUNT FOR INHERITANCE TAX PURPOSES?
Yes, irrespective of whether or not inheritance tax is actually payable. There may be an exception if the estate is less than £10,000. As referred to above, it must be submitted prior to or, if no tax is payable, at the same time as the application for the grant of probate or letters of administration.
If an Inland Revenue account is required then precise details of all the assets must be obtained including valuations at the date of death.

WILL YOU HAVE TO PAY INHERITENCE TAX?
In calculating inheritance tax the following are taken into consideration:

  1. All of the assets (less liabilities) which the deceased owned at the date of death. These will include bank accounts, houses, interest in a business, life insurance policies, the contents of any houses/personal belongings, farms etc.
  2. Assets that the deceased owned abroad, unless they were non-UK domiciled.
  3. The deceased's share of any jointly owned assets.
  4. The value of some trust funds in which the deceased was entitled to receive the income.
  5. The value of any assets which the deceased has given away within 7 years of the date of his death (or longer if they "reserved a benefit" in the asset given away).

If these add up to more than the threshold then inheritance tax is payable at a rate of 40% of the amount over the threshold. The threshold is currently £325,000, but is ordinarily reviewed every year in the Budget.  There are exemptions and reliefs that can reduce the inheritance tax. The most important is that if the deceased left assets to their spouse then there is no inheritance tax to pay in respect of the value of those assets. The surviving spouse can utilise the unused element of Inheritance tax on their death meaning that a married couple or civil partners can leave up to £650,000 without paying any tax.  There are additional exemptions in relation to main residences left to children or gifts to charity which we are happy to explain.

HOW LONG WILL IT TAKE?
It is impossible to give an answer to this question, as it will vary from one estate to another. It will generally depend upon how complicated the estate is and how many assets there are. For a straightforward estate we expect matters to be concluded within 6-8 months and where Inheritance Tax is payable within 9-12 months.

HOW MUCH WILL IT COST?

We charge on the basis of the time spent administering the estate, which means that our charges for administering a large estate consisting of one or two assets may be less than dealing with a small estate with shares and several beneficiaries.  Full information is set out on our Wills and Probate page.
 
POWER OF ATTORNEY

WHAT IS A LASTING POWER OF ATTORNEY?

A Lasting Power of Attorney is a legal document which allows you to give power to someone of your choosing, whom you trust to make decisions on your behalf if you should you lack the capacity to do so yourself.

WHAT HAPPENED TO ENDURING POWERS OF ATTORNEY?
From 1 October 2007, Enduring Powers of Attorney (EPA) have been replaced with Lasting Powers of Attorney (LPA). The LPA remains effective after the donor loses mental capacity, in the same way as the old EPA did.

IVE ALREADY GOT AN ENDURING POWER OF ATTORNEY – IS IT STILL VALID?
Yes, as long as it was signed before 1 October 2007, the Enduring Power of Attorney will remain valid.

WHAT IS THE DIFFERENCE?
 The EPA could only relate to financial issues, whereas the new LPA can also refer to personal welfare issues. Whatever the donor's mental capacity, the LPA must be registered with the Court of Protection (also referred to as the Office of the Public Guardian) to become effective. There also has to be a "certificate provider". This is a person who provides a certificate confirming that the donor understands what s/he has signed and understands its contents, and that no pressure has been brought to bear. The certificate goes to the Court with the LPA.

DO I HAVE TO GO TO COURT TO REGISTER IT?
No, this can all be done by your solicitor. All you will need to do is sign the document itself.

WHY SHOULD I BOTHER, I’M CAPABLE OF DEALING WITH MY OWN AFFAIRS AT THE MOMENT?
If you have a Lasting Power of Attorney, it remains valid until the day you die. This means that you can sign it now and it doesn’t need to be used until it becomes essential to do so. This is all the more important for those with degenerative diseases such as Alzheimer’s or Dementia. It is much easier to sign the documents before the illness becomes more serious.  If you leave it until you are unable to express your wishes, trying to obtain authority to deal with your affairs can be a very expensive and time consuming procedure which can include obtaining medical opinions and paying court fees. This can exacerbate an already traumatic situation, not only for the person in question but for theirloved ones as well.

HOW MUCH DOES IT COST?
A detailed quote can be given by for the costs involved, this includes discussing the Power of Attorney with you (including, if local, a home visit), preparing all the forms, ensuring they are completed correctly to avoid unnecessary delays, and corresponding with the Office of the Public Guardian.