Category: Property

Details of consultation have been released by the Ministry of Justice that proposes making online applications made by professionals for Grants of Probate or Letter of Administration mandatory. In this blog, we look at whether the probate process should go online entirely.

The consultation published by the Ministry of Justice proposed that all probate applications should be made online with the exception of four probate applications being:

1. Where there are multiple applicants entitled under intestacy (although the system is currently being developed to allow such applications;
2. Rule 31- grants to attorneys, only where the attorney (representative for a deceased person who when alive was subject to a power of attorney order) is not an existing probate professional able to use the online service; 
3. Rule 36- trust corporation applications (these must be made by officers of the Trust Corporation); and 
4. Rule 39 – resealing under Colonial Probates Acts (these applications continue to require an affidavit, rather than a statement of truth and thus need to continue to be paper-based). 

The Ministry of Justice set out in their consultation paper many advantages of the probate process going online entirely, one of those was saving the users cost and time, and providing a more efficient and reliable system. They also included providing a secure means of making a probate application with an immediate receipt on making the application, and that the system would be accessible to use at any time.  

It has also been proposed that the system is set to include a detailed checklist of the steps required to be completed which is likely to reduce the number of errors being made and ensure all of the information required in order to complete the application is included at first instance, this should help speed up the time probate applications are being processed and turned around. 

It is accepted that the new online system will have many advantages to it, but what are some of the disadvantages? 

With more and more of us working from home, there has been a strain on the telecommunications industry to enhance the systems so that more connections at a higher speed and rate can be made. Although time and costs will be saved by making probate applications mandatory this will be heavily dependent on having a reliant and secure internet connection. What happens if part way through the process you lose your internet connection, will that mean you have to start the application again?

Furthermore, despite the new system being an online based process, there will still be a requirement to post the Will and Statement of Truth/Legal Statement. Although the online process will generally speed up the process and save time and resources, this requirement is likely to achieve the opposite effect. Having said that this requirement removes the need for clients to swear on oath in person in an intimidating Court setting which will certainly help client’s feel more reassured.

There are also talks of making all copy documents/scans a requirement. This is likely to cause some issues with regards the question of validity of documents. If only copy documents/scans are required? Then how do you know for sure that the document has not been tampered with. Effective safeguards need to be put in place to protect vulnerable clients and fraudulent applications being made. We fear that if only copy documents are required in the future this may lead to an increase in improper wills and subsequently an increase in estate disputes. 

All in all, mandating online applications for probate looks promising. By creating a new modernised way of making the applications, Grant of Probate or Letters of Administration should be received at an earlier time meaning that probate practitioners can concentrate on progressing the file and assisting their clients complete the process in a more efficient and effective way. As long as any technical issues are addressed the new system is likely to be an excellent way of saving time and resources and allow practitioners to progress probate files expeditiously. However, any advancements in technology must safeguard the interests of the most vulnerable and unless all concerns regarding safeguarding those individuals are properly addressed then we are hesitant for all probate applications to be made entirely online. 

If you would like a free consultation to discuss your Will or Probate matter, please contact a member of the team on 01753 486 777. 

A Legionella Risk Assessment assesses the potential risks of the spread of Legionella bacteria within properties. 

The Legionella bacteria causes a pneumonia like illness known as Legionnaires’ disease and can contaminate and thrive in water systems, such as the hot and cold-water systems within properties. 

Under health and safety law, landlords have a duty to ensure their tenants are not exposed to any health and safety risks. This includes exposure to Legionella bacteria and landlords should ensure they assess the risk of exposure within their properties.

Whilst large and complex water systems may require routine testing, this is often not considered necessary for simple domestic water systems found in most residential properties.

Usually a landlord can comply with this duty by carrying out a Legionella Risk Assessment themselves, without needing to employ a consultant to carry out a risk assessment for them. Landlords should ensure that their Legionella Risk Assessment is kept up to date and is periodically reviewed. 

On 8 June 2020, the Chancellor, Rishi Sunak, announced his mini budget that included a temporary raise in the Stamp Duty Land Tax (SDLT) threshold.

Previously, the threshold for paying SDLT was £125,000, although first time buyers benefited from a higher threshold of £300,000.

Under the new measures, the threshold is raised to £500,000. This means that anyone buying a property will not pay any SDLT on the first £500,000 of the purchase price/transfer value. 

This temporary change came into effect immediately and will remain in effect until 31 March 2021.

During this period, SDLT liability will be calculated as follows:

Property price/transfer value	SDLT rate
Up to £500,000	Zero
£500,0001 to £925,000	5%
£925,001 to £1,500,000	10%
Above £1,500,00	12%

 

The above rates apply to first time buyers and those replacing their main residence.

Whilst anyone purchasing an additional property will still benefit from the increased SDLT threshold, the 3% high rate will still apply on the revised standard rates.

This means the rates for anyone purchasing additional properties are:

Property price/transfer value	SDLT rate
Up to £500,000	3%
£500,0001 to £925,000	8%
£925,001 to £1,500,000	13%
Above £1,500,00	15%

On 19 June 2020, the government published the ‘Code of Practice for commercial property relationships during the Covid-19 pandemic’.

Whilst the Code is voluntary, it aims to support parties in negotiating affordable rental agreements and tries to promote best practice amongst landlords and tenants.

The Code applies to all commercial leases held by businesses which have been seriously negatively impacted by the Covid-19 crisis. 

It is important to note that a tenant’s legal obligation to pay rent and comply with tenant covenants in the lease remain, unless an agreement is reached with the landlord. If a tenant can pay their rent in full, it is clear that they should continue to do so.

However, where a tenant is unable make full payments of rent, the Code provides some guidance of how a landlord and tenant should approach this situation.

The Code encourages collaboration between the landlord and the tenant, recognising that it is in both their interests for the tenant’s business to continue trading from the property during a recovery period.

A tenant who cannot afford to pay their rent is encouraged to approach their landlord to seek a temporary agreement/concession to assist them whilst they transition through a recovery period. The Code recognises that the relationship between each landlord and tenant is different, but states that each party should act in good faith, reasonably and flexibly. This can include a tenant being transparent about why they need a concession, including providing financial information where necessary, and a landlord ensuring they clearly explain the reasons for any refusal.

Possible arrangements suggested by the Code include:

1. A rent-free period for a set period of time;
2. A reduced rent for a set period of time;
3. A deferral of the whole or part of the rent for a set number of rent payment periods;
4. All or part of the rent to be paid as a proportion of the turnover of the site, incorporating any period during which the site was closed;
5. Landlords drawing from rent deposits on the understanding that they do not need to be topped up by the tenant until it is realistic and reasonable to do so;
6. Landlord’s waiving contractual default interest on unpaid rents; and/or
7. Rents being paid in arrears rather than in advance to make payment plans more affordable.

The Code also considers service charge and suggests that, where there is a known net reduction in overall service charge due to the lack of use of a property, this reduction should be passed on to the tenant as soon as possible in order to assist with cash flow.

It is clear that the government are encouraging cooperation and collaboration between landlords and tenants in order to help as many businesses as possible survive the impacts of the Covid-19 crisis and to ensure properties remain occupied.