Personal Law | Dickins Hopgood Chidley Solicitors

Mediation

Why consider mediation? At Dickins Hopgood Chidley we understand that becoming involved in a dispute, whether it be with a business, customer or between individuals, can be stressful, time-consuming and expensive.

So when we look at how best to resolve your dispute, we look not only at Court proceedings, but also at methods of Alternative Dispute Resolution (ADR).

There are many varieties that are suitable for different types of dispute, but this fact sheet considers Mediation.

What is Mediation?

Mediation is a voluntary process whereby the parties agree to appoint an independent third party, the mediator, whose role is to assist the parties in coming to a mutually agreed resolution to a dispute. The mediator is not a judge; they will not decide the case or come down on one party’s side. Instead they discuss the parties’ positions on the case and settlement offers and discuss risks of the case and other factors that a Court would consider, to help the parties narrow the issues and eventually, all being well, come to a negotiated position.

Mediation is confidential and without prejudice, which means that nothing said at the mediation can later be used in any court proceedings. This gives the parties the freedom to say what they like and come to any agreement they wish, which a Court may not be able to award.

Proceedings do not need to have been issued for a mediation to be attempted between the parties to a dispute; indeed the trend is moving towards early mediation to avoid the costs of issuing Court proceedings at all.

How does Mediation work?

The parties, either together or at the suggestion of one, will agree to attend mediation. This will not be ordered by the Court, as Mediation is a voluntary process, but the Court does have an expectation of the parties to attempt to settle the dispute at all stages, and can impose cost sanctions on a party that unreasonably refuses to mediate. Once the parties have agreed to attend mediation, they will propose mediators and agree which one is to be appointed. Some mediators specialise in certain areas and it is important that a mediator is appointed who has the relevant knowledge of the area of law the dispute covers. Sometimes a party wants ‘their’ mediator to be appointed, but in reality, as the mediator is independent, it makes little difference which party nominates him or her.

Once the mediator has been appointed, the parties will agree a bundle of documents, known as the mediation bundle, which the mediator will review prior to the mediation. The parties may, and the mediator may require them to, exchange a position statement, which is a document that sets out their position on the dispute and what they wish to achieve at the mediation. The position statement may even set out thoughts on offers they would make. A ‘for the mediator’s eyes only’ statement may also be produced, which would only be disclosed to the other party with the consent of the other.

On the day of the mediation, it may begin with a joint session, where all parties sit in one room and the mediator chairs a discussion of the issues of the case. This is not a requirement and it may be that the parties do not meet through the entirety of the mediation. The parties will then break out to their own room and the mediator will shuttle between them, initially discussing the dispute generally to get an understanding of the parties’ position, perhaps facilitating an exchange of legal arguments before building up to the exchange of offers and counter offers until, hopefully, a settlement is reached.

Mediation is a voluntary process and one party may stop participating at any time. Equally, mediations can be quite long, with discussions going on into late evening. Once an agreement has been reached, it is not binding until it has been recorded in writing and signed by all parties. This is usually undertaken by the legal advisers with assistance from the mediator.

What does Mediation cost?

The fees of a mediator are variable and are sometimes based on the value of the dispute being mediated. Typically, a contractual dispute mediator would charge a fee in the region of £800- £1,500 per party. Additional costs on top may be travel, and additional charges if the mediation runs over a certain time of the day.

On top of the mediator’s fees are legal fees, which also vary depending on the complexity of the dispute being mediated, and whether there is a requirement for barrister attendance, which is sometimes beneficial in complex disputes. If you would like more information regarding mediation or any other method of ADR, please contact Paul Owen to arrange a consultation: 01488 683555 or powen@dhcsolicitors.co.uk.

Download our Mediation factsheet as a pdf

Why make a will?

If you die without leaving a valid Will, then the law decides how your estate is distributed, regardless of any wishes you had or promises you made during your lifetime.

The Intestacy Rules

If you are married, or registered civil partners, and have children

If your estate is worth less than £250,000 then your husband or wife gets everything.

If your estate is worth more than £250,000 then your husband or wife will get £250,000, all personal belongings and one half of everything over this sum. Your children would be entitled to the other half of the sum over £250,000, equally between them if more than one, held on trust until they are 18. Should any of your children die before you, then their children would be entitled to take their parent’s share

If you are married or civil partners and have no children

Your husband or wife receives your entire estate.

If you are not married but have had children

Your estate will be shared between your children equally but it will be held on trust until they are 18.

If you are not married and have no children but do have surviving relatives

Your estate goes to your relatives, depending on who survives you, in this order of priority: parents; brothers/sisters; half brothers/sisters; grandparents; aunts/uncles; half aunts/uncles.

If you are not married and have no other relatives

Your estate will go to the Crown.

The intestacy rules do not recognise “common law” partners, and “children” includes adopted and illegitimate children but not stepchildren.

Everyone should have Will, but it is of exceptional importance if:

you have been married more than once;
you have young children for whom guardians should be appointed;

you want to provide for a child who is not your own;
you are separated or divorcing;
you run a business and wish to plan for succession.

Making a Will is the only way to make sure that your wishes are carried out after your death.

We offer a bespoke Will-making service, and we ensure that we take the time to discuss all aspects of your assets and potential estate before we start to prepare your Will.

We are happy to answer any questions you may have relating to inheritance tax and trusts, legacies and residuary gifts. We will provide you with a draft of your Will and explain it fully to you, giving you the peace of mind of knowing that your estate will be handled in the way you wish if the worst were to happen.

Example

Mr James has a daughter and Mrs James has two sons, both from previous marriages. Mr James has not had time to think about making a Will, when sadly he has a heart attack and dies aged 62 years.

His estate is worth £220,000 and passes to his wife. Mrs James survives for only a further 3 months before passing away suddenly, without making a Will.

Her estate, including the £220,000 she inherited from her late husband, passes under the laws of intestacy to her two sons. Mr James’ daughter receives nothing.

There are mechanisms for Miss James to make a claim from the estate for provision, or for Mrs James’ children to agree to a variation of the intestacy, but this could be avoided by a Will providing for these circumstances.

Download this resource as a pdf

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

What to do when someone dies

There are many matters which require consideration at this difficult time. This summary is to assist you in dealing with the first steps.

Immediate steps:

Register the death at the register office – 01635 279230 (West Berkshire) or 0300 003 4569 (Wiltshire)
Find out if there were any specific wishes about funeral arrangements (this may be in the Will);
Organise the funeral;
Notify friends, relatives and employers / employees
Put notice in the newspaper.

Practical Matters:

Cancel all deliveries (papers etc.);
Remove valuables from his/her home;
Redirect mail;
Inform the building, contents and car (if appropriate) insurers;
Arrange for the immediate welfare of any pets. The Deceased may have provided for their long term care in his/her Will

Collect the following information:

The Will;
National Insurance Number, tax office and reference number;
Date and place of birth, and date and place of marriage or civil partnership.

Notify:

The executor of the Will, and if there is no Will, an administrator of the estate will need to be appointed in accordance with the probate rules;
If you need any help speak to a solicitor

Contact in due course:

Banks and building societies;
Department for Work and Pensions if receiving any benefits;
Pension providers;
Solicitor and accountant
Deceased’s tax office;
Landlord if deceased lived in rented property;
Local authority – council tax, parking permit or if a blue badge was held for disabled parking;
Care providers (Social Services or private provider);
Insurance companies: travel, private health care, etc;
Life insurance companies;
Mortgage provider;
H.P. or loan companies, credit and store card providers;
Utility companies – water, electricity, gas and phone;
TV/Internet providers;
DVLA and passport office;
Clubs and associations;
Dentist or other healthcare providers;
Creditors – anyone they owed money to;
Debtors – anyone who owed them money;
Digital account providers – email, social media, Amazon,
eBay etc.

A solicitor can assist in notifying all the relevant organisations and obtaining the information required to apply for the Grant of Probate. Don’t forget, we are here to help as much as you would like.

Download this resource as a pdf

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Trusts explained

What is a trust?

In principle, trusts are a simple concept. They are a private legal arrangement where the ownership of someone’s assets is transferred to someone else to look after and use to benefit a third party.

The person giving the assets is usually called a “settlor” (or “testator” if it is done by Will). The people asked to look after the assets are called “trustees”, and the person benefitting is the “beneficiary”.

The distinctive feature of a trust is the separation of legal and beneficial ownership of the asset(s) involved. The trustees legally own the asset, but they must always put the interests of the beneficiary above their own. The settlor can be a trustee, but they must still act in the interests of the beneficiary, not themselves.

Trusts can take effect during the settlor’s lifetime or within their Will.

Why use a trust?

Trusts are very common in everyday life and most of us will come into contact with them at some point. Company pension schemes, for example, are usually structured as trusts, and trusts are commonly used for charitable funding.

For most people however, the type of trust they are most likely to come across personally is a trust established for managing their family’s finances.

Some common situations are:

• To provide for a husband or wife after death while protecting the interests of children in the long term;

• To protect the inheritance of young children until they are old enough to take responsibility themselves;

• To provide for vulnerable relatives who need support to look after their affairs;

• To help succession planning in family businesses.

Trusts are particularly useful when planning how money and assets should pass from one generation to another, especially when there are divorces or second marriages involved.

Are trusts secret?

Trusts are personal arrangements, and most people expect them to be kept confidential. Quite often, even beneficiaries of a trust may not be aware of it, possibly because a parent would prefer their children not to know that they are at some point going to receive benefits from it. Recognising this, there is no requirement to register a trust or to publish the names of the parties involved. However the tax authorities will generally need to be informed of the establishment of a trust and any suspicious activities should be reported and investigated, so trusts are not regarded as “secret”, but their confidentiality is generally preserved.

Trusts and Tax

Trusts are often represented as being vehicles to avoid tax. In reality, there are virtually no circumstances in which anyone would be advised to set up a trust to gain tax advantages. In setting up a trust, the settlor is giving up ownership of the asset and such a dramatic move only normally makes sense if the settlor has clear objectives for this, and tax is likely to be a secondary issue.

Any tax advantages given to trusts are tightly targeted by tax authorities to those seen as doing social good, such as charitable trusts or those benefitting a vulnerable relative. Even then the rules are policed closely. Most other trusts attract few tax advantages.

The official position in the UK is that trusts are tax-neutral, although many professionals now think that the UK system penalises some types of trust. In line with the official policy, trustees must give HM Revenue full details when a trust is established and are generally personally liable for the taxes due on the trust.

Seek Advice

Anyone considering a trust, whether during your lifetime or in your will, is advised to seek professional assistance, to ensure that all options are considered and that the trust is suitable for you and meets your requirements. The tax consequences of the trust should be discussed in full so that you are fully appraised of your position.

Download this resource as a pdf

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Providing for someone with a learning disability

Someone signing a will - Legal advice to help you provide for someone with learning difficulties

If you leave money to a relative or friend with a learning disability, or die without making a will, it could have unintended consequences.

If your relative or friend cannot manage their own money, the Court of Protection may need to become involved to assist in looking after the legacy. This can be complex and time consuming, and there are fees involved.

The person with a learning disability may have impaired understanding of the value of money and may be vulnerable to other people taking advantage of their new found wealth.

If the person concerned is receiving state benefits, the receipt of a legacy is likely to affect the amount to which they are entitled. Most benefits are subject to the person holding less than a statutory maximum of capital.

You may think of leaving your estate to your other children to use to help your child with a learning disability, but that may not be an appropriate solution, as there is no legal obligation on them to use it in that way, and the money might be treated as their money if they were to divorce, or go bankrupt, or die, or if they needed to claim benefits themselves.

Discretionary Trusts

The solution is to set up a Discretionary Trust within your will. You will appoint trustees who will support the person concerned to manage money and to make decisions as to how it should be used. The trust fund can be used to provide luxuries and additions to the person’s day to day needs, as well as having the flexibility to benefit other members of the family if needed.

Contact Us

A Will like this should be made by a solicitor who has experience of these types of wills. A Will is vitally important, particularly in these circumstances, and you should consider all the options with your solicitor who will write a will to suit you.

Typical Example

Mr and Mrs Smith have three children, Adam, Ben (who is autistic) and Charlotte.

Mr Smith dies first and leaves everything to his wife.

Mrs Smith dies later and leaves 1/3 of her estate to Adam, and 1/3 of her estate to Charlotte. The other 1/3 of her estate is to go into a Discretionary Trust to benefit Ben. The Trustees will be people Mrs Smith trusts completely. This could be Adam, Charlotte, and or brothers, sisters or family friends, or a professional. The trustees can use the money to help Ben in any way they think fit, and it will not necessarily affect his benefits. When Ben dies (if all the money has not been used up) it can go to Adam, Charlotte or the grandchildren.

The money can be used to pay for luxuries and extras to improve Ben’s life, e.g. holidays, outings, music and visual or computer equipment, anything which he would not otherwise have.

Download this resource as a pdf

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Debt Recovery

At Dickins Hopgood Chidley Solicitors, we offer a full debt recovery service, including complying with the Protocol, issuing proceedings, negotiation, Alternative Dispute Resolution (ADR) and representation at final hearings. This factsheet considers the Debt Recovery Protocol.

When does the Protocol apply?

The Protocol applies to businesses (including sole traders and public bodies) who are claiming from an
individual (including a sole trader). It does not apply to business to business debts.

Information to be provided by the Creditor

The creditor should send a letter of claim to the debtor which must include:-

• The amount of the debt

• Whether interest or other charges are accruing

• How the debt arises and the content of the agreement

• Where instalments have been offered by the debtor, explanation why this is not appropriate and/or why Court proceedings are being considered.

• How the debt can be paid

• A prescribed information sheet, response form and financial statement form, and details of a return address.

The letter should be sent by post and any other applicable means available, such as email. The debtor has 30 days to respond.

The Debtor’s response

The Debtor’s response should be made by completing the response form and financial information sheet.

The creditor should consider the responses given and decide how best to move forward, for example by settling a payment plan or commencing proceedings.

Early disclosure of documents

The protocol provides for the parties to engage in early disclosure of documents to help them reach a settled position.

Where a request is made by a debtor for documentation, the creditor must provide the document within 30 days, or provide a reason why this is not possible.

Alternative Dispute Resolution (ADR)

The parties should consider settling the dispute through ADR, at all times.

ADR may include negotiations, without prejudice meetings, or mediation. The size of the debt may dictate what method of ADR is attempted.

Compliance with the Protocol

The Court will expect the parties to have complied with the protocol before proceedings are commenced. The Court may impose sanctions on parties for failing to comply, including in relation to costs.

If you have any questions about the pre-action protocol for debt claims, please contact Paul Owen on 01488 683555 or powen@dhc-solicitors.co.uk to arrange a consultation.

Download this resource as a pdf

To discuss this and to obtain more information contact:
Paul Owen at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

What is probate?

Probate legal advice in Berkshire, image shows a person reading documents

Probate, what is it? When a person dies, someone has to deal with their affairs and decide what will happen to the things they owned.

Executors

The executors are the people appointed in a Will to deal with the estate of the person who has died. An administrator is the person who deals with the estate of a person who has died without a Will (intestate). They can both be called personal representatives.

Executors can arrange the funeral and take charge of the house and possessions, unless they automatically pass to a joint owner.

If there are sufficient assets the executors will have to apply for probate. This is the legal document proving the Will and authorising the executors to deal with the assets and liabilities of the estate.

Applying for probate

To apply for probate, the value of all of the deceased’s possessions, assets and debts has to be ascertained.

If there is, or could, be Inheritance Tax to pay, the executors must report the value of the estate to HM Revenue. If the estate is not liable to IHT the executors must still complete a form giving details of the assets and certain gifts made by the person who died. This must be arranged before an application is made to the Probate Registry.

Once the matter of inheritance tax is resolved, an oath is sworn by the executors or administrators, confirming that they will administer the estate. When probate is granted, the executors have the right to deal with the assets and property of the deceased, including closure of bank accounts, sale or transfer of shares, transfer or sale of property, and payment of debts and expenses etc.

Executors are responsible for distributing the estate to the beneficiaries of the Will. Administrators must follow the ‘rules of entitlement’, which govern who will benefit from the estate of a person who has died intestate (without a will).

Instructing Us

Instructing a solicitor to act for you if you are an Executor or Administrator has the following advantages: –

1. It reduces the distress of dealing with the property and assets of a close relative or friend.

2. A solicitor advises on whether or not Inheritance Tax is payable and if so, how and when it must be paid. Inheritance Tax is complicated and in most cases you will need specialist legal advice. A solicitor will complete the lengthy inheritance tax return.

3. Financial institutions have different requirements to be met before they will release the deceased’s assets. A solicitor will be familiar with these procedures.

4. Administering an estate can be lengthy and complicated. A solicitor will be used to the complexity and be able to commit the time needed to sort out the estate.

5. A solicitor can deal not only with Inheritance Tax but also with income tax and capital gains tax arising during the administration of the estate, for which tax returns are required.

Download this resource as a pdf

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Lasting Powers of Attorney

A Lasting Power of Attorney (“LPA”) allows you to appoint an attorney to look after your affairs if you become incapable of doing so. It can only be made in advance, by a person who is still capable of making decisions.

Why make a Lasting Power of Attorney?

If no provision is made, and you lose capacity to make decisions for yourself, there would be no-one with legal authority to manage your affairs. The person wanting to help you with this task would have to apply to the Court of Protection for a deputyship order. Whilst we are happy to assist with this, it is a time-consuming and expensive process, and means that your appointee can do nothing until a Court Order is made. The person wishing to be appointed may not be the one you would have chosen!

If an attorney has been appointed in advance, and the document registered, they may carry out your wishes and act on your behalf without delay or further formality.

A Lasting Power of Attorney also helps relieve those close to you of responsibility for trying to guess what you would have wanted, and will help in the situation of there being conflicting views within a family, or indifference, as to the best way to care for you if you are unable to look after yourself.

What is a Lasting Power of Attorney?

The Lasting Power of Attorney is a legal document which allows decision making to be delegated to your chosen attorney or attorneys, so that they can make decisions for you when you are unable to do so. attorney or attorneys, so that they can make decisions for you when you are unable to do so.

There are two types of Lasting Powers of Attorney:-

1. Property and Financial Affairs Lasting Powers of Attorney

A Property and Financial Affairs LPA enables your attorney to manage and sell your property, manage your bank accounts and investments, and pay bills on your behalf.

2. Health and Welfare Lasting Powers of Attorney

A Health and Welfare LPA enables you to set out how you want to be cared for if you lose your mental capacity. It covers medical treatment, where you live, what sort of care you receive, and day-to-day decisions about your welfare.

How do I make a Lasting Power of Attorney?

We will go through the forms with you and help you to decide what type of power of attorney is right for you, and the conditions you wish to place on it. When the Powers are created, an independent person has to certify that you are signing it of your own free will and that you understand what you are doing. We can do this if appropriate. In some circumstances, a Doctor may be asked to certify the LPA.

The LPA then has to be registered with the Office of the Public Guardian before it can be used, even if the donor (the person making the LPA) still has mental capacity. As part of the registration process, at least one person can be notified of the LPA so that they can raise any concerns with the OPG. The registration process takes between 6 and 16 weeks, depending on the workload of the Office of the Public Guardian, so we recommend registering straight away, so that the LPA is available to be used as soon as it is needed.

Download this resource as a pdf

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555