Gaps in IPP Flashcards
Can the SRA order you to pay compensation if an undertaking is breached?
No. There is never an obligation to give an undertaking. You should record undertakings given and discharged.
Can you act for both a mortgage lender and borrower if the contract is on standard terms
Not always. You must always consider whether there is a conflict but can act if there is a substantially common interest. They key is acting in the best interests of the clients.
Who do you need to check the identity of when carrying out due diligence on companies?
All directors and shareholders who control MORE THAN 25% of the shares.
Can you act for both sides of a contentious matter if they are represented by different solicitors in the same firm?
No. You must refuse to act even if the two solicitors are supervised by different people. They cannot consent to this.
What remedies can the ombudsman impose?
Cannot impose fine, only compensation (+interest, pay costs and limit fees) apology and put right/specific action order.
Rule 5.38 The ombudsman’s determination may contain one or more of the following directions to the authorised person in favour of the complainant:
a) to apologise;
b) to pay compensation of a specified amount for loss suffered;
c) to pay interest on that compensation from a specified time;
d) to pay compensation of a specified amount for inconvenience/distress caused;
e) to ensure (and pay for) putting right any specified error, omission or other deficiency;
f) to take (and pay for) any specified action in the interests of Legal Ombudsman Scheme Rules 21 the complainant;
g) to pay a specified amount for costs the complainant incurred in pursuing the complaint;
h) to limit fees to a specified amount.
Lack of training defense to failure to report money laundering
A solicitor who was never trained to recognise that certain behaviour indicates money laundering may be able to use a lack of training as a defence to any charge that he failed to report suspicions of money laundering under s.330 Proceeds of Crime Act 2002.
What does it mean for you to account properly to a client for profits made?
This doesn’t necessarily mean paying money to the client, you could offset it against your charges
Do you always need to set out in writing the costs at the start of each matter?
Normally yes, but not if it is a regular client who is already aware of the firm’s charges.
|What happens to jointly owned property on death -intestate/ will
Passes through survivorship for will and intestate
When does the first IHT installment need t be paid?
six months after the end of the month of death, and payment can wait until that time even if the grant is obtained earlier (exception to usual requirement for IHT to be paid before grant obtained)
Can IHT continue to be paid in installments if the property is sold
No. On the sale all outstanding tax and interest becomes payable
What interest is payable on IHT installments?
You will not pay any interest on the first instalment unless you pay late. On each later instalment you must pay interest on both of the following:
• the full outstanding tax balance
• the instalment itself, from the date it’s due to the date of payment (if it’s paid late)
What kind of property is eligible for IHT installments?
What you can pay in instalments :
• Houses - You can pay 10% and the interest each year if you decide to keep the house to live in.
• Net value of a business run for profit but not it’s assets
• Quoted Shares and securities giving control
• Agricultural land and property
• land of any description.
• Gifts of buildings, shares of securities or part or all of a business. If the gift was an unlisted share or security it must still have been unlisted at the time of death.
• Unquoted shares of securities if they’re worth more than £20,000 and either of these apply:
o they represent 10% of the total value of the shares in the company, at the price they were first sold at (known as the ‘nominal’ value or ‘face value’)
o they represent 10% of the total value of ordinary shares held in the company, at the price they were first sold at
You can also pay in instalments if either of these apply:
• at least 20% of the total Inheritance Tax the estate owes is on assets that qualify for payment by instalments
• paying Inheritance Tax on them in one lump sum will cause financial difficulties
What is a substitutional gift under S33 Wills Act
where a will contains a gift to a child or remoter descendant of T and B dies before T leaving issue then the Issue of B will recieve the gift unless a contrary intention appears by the will.
Types of grants
A Grant of Probate Letters of Administration A grant of letters of administration with will annexed A grant ad colligenda bona A grant of administration de bonis non A grant pendant lite (pending suit) A grant under Section 113 and 116 Senior Courts Act 1981 A grant of double probate
A grant of probate
When there is a will
Letters of administration
when no will exists
A grant of letters of administration with will annexed
when a will is being proved but not by the executor named or if no executor has been named. For example, the grant could be taken out by a named beneficiary.
A grant ad colligenda bona
a limited grant obtained to deal with a particular asset if the full estate cannot be ascertained but urgent action is required. For example, a property sale but the estate cannot be distributed.
A grant of administration de bonis non
a grant obtained when there has been a previous grant issued but the last surviving personal representative has died without completing the administration of the estate, leaving no chain of representation.
A grant pendant lite (pending suit)
a grant issued where the estate is subject to legal proceedings/a claim where the persons who would normally obtain a grant have not been able to apply for a full grant beforehand. This is usually issued to an independent administrator to preserve the estate until the court proceedings are settled.
A grant under Section 113 and 116 Senior Courts Act 1981
a limited grant the court can issue to deal with any part of the deceased’s estate (s113) or to someone who would not normally be entitled to take out a grant (s116).
A grant of double probate
when a grant has been issued with power reserved to another executor and that executor then wishes to act.
What to do when the only PR passes away before T and before obtaining the grant of probate
if there are other PRs then they can continue to administer the estate.
If there are no PRs left then The Non-Contentious Probate Rules 1987 (NCPR) determine who is entitled to obtain a ‘grant of letters of administration with will annexed’. In order of priority:
1. a trustee of the ‘residuary estate’
2. a residuary beneficiary
3. a personal representative of any residuary beneficiary
4. a ‘legatee’ (a person who receives a legacy) or a creditor of the deceased
5. a personal representative of a legatee or creditor of the deceased
If one or more persons are entitled to the same degree any can apply for the grant without notice to the others.
Only up to 4 PRs. Family decide who applies
