The deliberate deprivation of assets

Paying for care home costs can be a real concern as we get older and become more incapacitated, especially where we would like our children to inherit or benefit from the sale of the family home after we are gone. So naturally, many of us look to ways in which we can mitigate our liability to pay for any care.

However, when means testing what money a person has – so as to assess the extent of its own liability to contribute towards these care costs – the local authority may treat any property and savings that have been gifted or transferred to someone else as a ‘deliberate deprivation of assets’.

What is a deliberate deprivation of assets?

In circumstances where a person requires permanent residential care, the local authority will carry out an assessment of their means, including any savings or property, to determine whether or not they are eligible for financial assistance. Generally speaking, the local authority will help to pay for care costs if a person is assessed as having capital of less than £23,250.

When undertaking this means test, the local authority will not only look to any existing property that a person owns, but also any property they have previously owned, especially where there is a possibility that this has either been gifted, transferred into a trust or sold at a knockdown price to their adult children.

In this way, the local authority will seek to establish if someone has disposed of any savings or property to purposely bring them below the means test threshold.

How will deliberate deprivation be decided?

In the local authority’s decision-making process, much will depend on the timing of any disposal of savings or property prior to being means tested, where a gift or transfer will not usually be seen as a deliberate deprivation of assets if:

• A person is fit and healthy at the time of the disposal

• Had no reasonable expectation of the need for residential care, and

• Had a legitimate reason for transferring the asset(s) to someone else.

If, on the other hand, these requirements are not met, the local authority is likely to suspect, and ultimately decide, that the avoidance of care costs was the motivation behind making any gift or otherwise disposing of the property.

It is worth noting that even if you gave away any savings or property a long time ago, it is still possible that the local authority could make a finding of deliberate deprivation if it is clear that the main reason for you reducing your assets was the avoidance of care home costs in the future.

What will a finding of deliberate deprivation mean?

If the local authority decides to treat any disposal of savings or property as a deliberate deprivation of assets, your care home costs may be calculated as if you still owned the assets in question, notwithstanding that you have lost the benefit of being able to utilise these. This could leave you with a very limited choice of affordable care homes available to you when the time comes.

As such, given the risk of being found by the local authority to have intentionally reduced your assets when assessing your eligibility for financial assistance, and being left without the necessary funds to ensure a decent quality of life, expert advice should always be sought here.

For further advice please call 01253 629300.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Administering an estate – can you do it yourself?

If a loved one has recently passed away, and you have been named as an executor of their will, assuming you are willing and able to act in this capacity, the legal responsibility will rest with you to administer the deceased’s estate.

This may, at first blush, seem like a daunting prospect, especially if the deceased owned a number of different assets, in which case you would be well advised to secure the help of a legal professional. In more straightforward cases, however, this may be a matter that you are more than capable of undertaking yourself.

Below we examine how easy it is to administer an estate without a solicitor.

What does it mean to administer an estate?

In most cases, before you can even begin to deal with the deceased’s estate, you will need to apply for a grant of probate. Probate is the legal process in which you are officially granted the necessary permission to deal with someone’s financial affairs following their death. This is called ‘administering the estate’.

This includes settling any debts, taxes, funeral expenses and administration costs, and thereafter passing on any remaining property, money and assets, ie; the residue of the estate, to the beneficiaries named under the deceased’s will.

That said, for a small estate, a grant of probate – or where the deceased didn't leave a will, letters of administration – may not be needed. This could be, for example, if the deceased didn’t own any property or assets outright, where any jointly owned assets such as the matrimonial home will pass automatically by survivorship to the deceased’s spouse or civil partner. It could also be where the amount of savings held in any account fall below £5,000.

However, a grant of probate or letters of administration will usually be required to sell or transfer any property held in the deceased’s sole name, or where property is owned jointly but as tenants in common rather than as joint tenants.

How easy is it to administer a deceased’s estate?

You can apply for a grant of probate if you are named as an executor in the deceased’s will. If the deceased died intestate, ie; without a will, you can apply for letters of administration as either their next of kin or close relative.

The actual process of applying for a grant of representation is not, in itself, especially difficult. However, there are various matters that must be undertaken in discharging your legal duty as an executor or administrator prior to even submitting your application to the Probate Registry.

This includes valuing the deceased’s estate for the purposes of inheritance tax liability, including offsetting any debts and liabilities – a process that can become especially complex depending on the beneficiaries and sums involved – and obtaining permission from HMRC to proceed with your application for a grant of representation where inheritance tax falls due.

Following the grant, you will also be tasked with liquidating any assets and distributing the estate accordingly, not to mention finalising any income tax position to the date of death and for the post death administration period.

How important is it to seek expert legal advice?

As an executor named in the deceased’s will, or the deceased’s next of kin, you do not have to administer an estate by yourself, where it is perfectly permissible to ask a solicitor to do this on your behalf. You will also be entitled to recoup any legal expenses incurred out of the estate.

By instructing a solicitor, you will absolve yourself from any personal liability arising out of any mistakes that you may inadvertently make in administering the estate yourself. A trained legal professional is also far more likely to identify any tactical advantages of approaching the valuation and distribution of the estate in a certain way, for example, reducing any capital gains tax liabilities.

Ultimately, therefore, for peace of mind and the avoidance of error, in the majority of cases it is best to seek expert advice and assistance when faced with the important responsibility of administering the estate of a loved one. For further advice please call 01253 629300.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Who gets the dog on divorce?

When facing divorce, one of the most acrimonious issues for couples can be the division of assets moving forward, especially when it comes to any beloved pet. In fact, custody battles of pets are becoming increasingly common.

Below we look at the rules relating to pet custody on divorce, in particular, how any disagreement as to ownership will be dealt with, and what factors the court may take into account when a dispute arises as to “who gets the dog”.

What are the rules relating to custody of pets?

For many, the idea of their pet dog or cat, or indeed any other domesticated animal, being treated as legal property may seem a little strange, especially when these animals are often perceived by their owners as close family members. In England and Wales, however, the law essentially considers a pet to be what’s known as a chattel, ie; a tangible and moveable asset.

This means, at least in theory, that a pet will be treated like any other item of personal property on divorce, such as a car or a piece of jewellery. This also means that there is no specific legislative provision as to custody entitlement of a pet, rather where a dispute arises over ownership of an animal, the court is bound to determine this issue based on the rules of property law.

How do the courts deal with pet custody battles?

Unfortunately, there is very little case law on pet custody matters, although given the limits of the law in dealing with this difficult scenario this will only usually arise as an ancillary issue within financial proceedings following a divorce.

For example, in the case of RK v RK [2011] EWHC 3910 (Fam), the wife made a claim to the family dog within the context of her overall financial claim. That said, whilst the court reaffirmed that animals are akin to personal property, the judge refused to make an order that the dog should live with the wife, as the husband had been principally responsible for the dog’s care.

Arguably, this could suggest a slight shift towards the courts recognising pets as living and sentient property, where a judge may be influenced by factors including, for example, the emotional bond between pet and primary carer.

That said, especially where an animal has significant financial value, and even more so where an income is derived from breeding a pedigree pet, any sympathy that the court may otherwise have for either party is unlikely to prevail over property law considerations when considering a fair financial outcome.

How should a pet custody dispute be handled?

If agreement cannot be reached between a divorcing couple as to the living arrangements for any pets, there remains every possibility that any animal will merely be viewed as personal property by the courts, to be factored into an overall financial settlement, without regard to the emotional attachment of either party or the special social status that pets are given by their owners.

It is therefore always best to reach an amicable agreement when it comes to pet custody, ideally with the help of an expert legal advisor, especially as the approach of the courts, and the sympathy of the judge, cannot be guaranteed.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Blackpool Property Market Back with a Bang

Blackpool law firm Blackhurst Budd has seen a dramatic increase in the number of new residential property instructions received over the last four weeks since lockdown restrictions were eased.

Comparing the first two weeks of May against the first two of June, the firm experienced a five-fold increase in the volume of instructions.

Briony Haley, Director and Head of Property commented:

“It’s fair to say that new instructions ground almost to a halt during April, though our team were still working hard to progress existing matters to the point of exchange.

Throughout lockdown home movers had been asked to delay their plans, with government estimates suggesting around half a million moves had been affected. The reopening of estate agents, the return to work for surveyors and the reduction in lockdown requirements had an immediate effect on new business for our property team.

We are cautiously optimistic about the Blackpool property market for the remainder of 2020. Clients are still wary of coming to the office but conveyancing, like many services now, can be provided without the need to meet at all. In addition to our local work we are often instructed by clients further afield and the entire process is dealt with via phone, email and where necessary post.”

Blackhurst Budd are within the top 200 conveyancing firms across England and Wales by volume of purchase transactions completed.

For a no obligation conveyancing quote please call 01253 629300 or email info@blackhurstbudd.co.uk

Executors Warned Not to Hold Off on Probate

Blackhurst Budd Solicitors have warned that executors and beneficiaries could be facing a lengthy wait if they hold off applying for Grant of Probate.

Last year grieving families faced delays of three months to due to software problems at HM Courts and Tribunals Service (HMCTS), plus a spike in demand due to the proposed hike in probate fees, which was later scrapped.

The Government has revealed that applications for grants of probate have fallen by 50% since 23rd March 2020, but as the lockdown eases there may well be a surge in applications due to the number of deaths that have occurred as a result of the pandemic. HMCTS have stated they will recruit more staff to process probate applications if needed, but it is unclear whether this would again result in a backlog and further delays.

Ian Bentley, Director and Head of Private Client at the firm commented:

“Delays during the estate administration process cause additional stress during an already difficult time for grieving families. It is currently taking 5 weeks to receive a Grant of Probate and we can see this increasing if people continue to hold off starting the process.

Dealing with matters following a death are emotional and challenging at the best of times and due to the pandemic, it seems people have been unsure how to proceed. Although certain elements have been adapted to reflect the social distancing measures in place, it is still possible to carry out the probate process.

In addition to delays with the HMCTS, requests for information from banks and other financial institutions is taking longer than usual so we are urging executors to start the process as soon as possible.”

Blackhurst Budd have taken all necessary precautions with regards the safety of clients and staff. Limited contact is required when dealing with probate and the vast majority can be dealt with over the phone, video calls or email.

For advice on Probate please call 01253 629300 or email info@blackhurstbudd.co.uk

Coronavirus: Separated Families and Contact with Children in Care FAQs

The House of Commons have released responses to some of the frequently asked questions regarding separated families and contact during the coronavirus pandemic. This covers:

• Can children move between the homes of separated parents?

• How should parents comply with a court-orders for contact?

• How are child maintenance payments impacted?

• Can I visit my child in care/residential home?

• My child contact centre is closed: What alternatives are being made?

• Where can I go for help and advice?

To download the guide please click here.

If you require further advice please call 01253 629300 or email info@blackhurstbudd.co.uk

Fylde Coast Housing Market Set To Reopen

From today estate agents’ offices can open; viewings are permitted; show homes can open; removal companies and the other essential parts of the sales and letting process are re-started with immediate effect.

Since lockdown restrictions were implemented in March, an estimated 450,000 people have been unable to progress their plans to move house. All buyers and renters will now be able to complete their moves.

A new Charter has also been launched by the Government and the Home Builders Federation, helping construction sites reopen in line with latest health and safety guidance. Construction companies signing up to the Charter commit to returning to work safely, including working with their subcontractors to implement social distancing, as well as detailed safe working practices.

Briony Haley, Head of Property at Blackhurst Budd Solicitors commented:

“This is positive news for the housing market in general and particularly for the hundreds of people in Blackpool and the Fylde Coast that have been waiting to complete their move. The moving economy is far wider than the initial transaction, the knock on effect of post move purchases such as beds and furniture right through to kitchens and bathrooms is vital.

Our property department has continued to operate throughout lockdown and we are now ready to get clients into their homes and expect an increase in new instructions as property valuations and viewings restart.”

The full list of activities now permitted in relation to the property market are:

• Visiting estate or letting agents, developer sales offices or show homes

• Viewing residential properties to look for a property to buy or rent

• Preparing a residential property to move in

• Moving home

• Visiting a residential property to undertake any activities required for the rental or sale of that property

For further information please call 01253 629300 or email info@blackhurstbudd.co.uk

Can I make a Will or set up a Lasting Power of Attorney without coming into the office?

This is the question we have been asked most frequently over the last month and the answer is yes to both. Though in normal circumstances we would wish to meet our clients face to face either in the office or at their home, we appreciate is this neither desirable nor possible for many people now.

The process below outlines how we are currently operating our Wills service and we have a similar system in place for Lasting Powers of Attorney.                                                                                                             

• Initial meeting via telephone or video call to advise and take instructions

• Client documentation issued by email or post

• Client returns Authority to proceed by email or post

• Blackhurst Budd Solicitors draft wills and issue advice letter by email or post

• Wills approved by the client

• Wills printed and bound and issued by post with detailed instructions for signing and witnessing

• OR final wills emailed to client for printing and signature with detailed instructions for signing and witnessing

• Signed wills returned to Blackhurst Budd Solicitors for checking

• Copy wills issued by email whilst originals are stored free of charge

To make your initial appointment for either a Will review or to set up a Lasting Power of Attorney please call 01253 629300.

Luke Robinson qualifies as a Solicitor

Luke Robinson has qualified as a Solicitor at Blackhurst Budd as of 1st May 2020.

Luke has dealt with residential and commercial property transactions at the firm since 2014 and started his two year training contract in 2018. He joined Blackhurst Budd after graduating with a Degree in Law with Criminology from Edge Hill University.

Managing Director Warren Spencer commented:

“Many congratulations to Luke on qualifying as a Solicitor. He has become a key member of the property team, building his own network of professional contacts and providing an outstanding service to our clients.”

Firm Donates £10,000 to Trinity Hospice

Hospice staff are on the front line of care during the Covid-19 crisis: and a generous financial donation will help the Trinity team go on caring for local people in the weeks and months ahead.

Blackhurst Budd had made Trinity’s Linden Centre its charity of the year, pledging £5,000 to help fund its bereavement counselling services for adults and children. But in the face of the current health crisis, the firm added another £5,000 for the adult hospice – a gesture which has been warmly welcomed.

Warren Spencer, Managing Director at Blackhurst Budd commented: “We are delighted to be able to support the Linden Centre and Trinity Hospice at this difficult time, when many charities are struggling to raise the regular income they need. We are aware that all planned fundraising activities have been abandoned due to Covid-19 and social distancing measures.

“Whilst NHS related charities are receiving a great deal of well-deserved coverage at the moment, we must not forget the vast number of other worthy charities who still need the support of local businesses and individuals to survive.”

He added: “I must stress that this donation comes from the firm’s charity account, which comprises of many small sums of money (residual balances), that our generous clients have agreed to donate. A great deal of hard work has gone into this process over the last six months by our accounts departments and that is reflected in the amount we are able to donate.”

With its summer events cancelled and an uncertain few months ahead, Trinity is facing a big funding deficit, despite money being pledged to the hospice sector by the Government. Fundraisers expect to be at least £500,000 down on targets – at a time when the hospice is busier than ever as it offers bed space to help ease pressure on NHS services locally.

Corporate Partnership Manager Janet Atkins said: “This donation comes at a time of considerable pressure at Trinity, when our nurses are on the frontline of Covid-19 care and many sources of funding have dried up.

“Blackhurst Budd have been staunch supporters over the years and we cannot thank them enough for their financial support in these unprecedented times. They are a fantastic example of a local company helping local people.”