THE ROLE OF AN EXECUTOR IN SCOTLAND

When a loved one dies, there are many practical issues that need to be considered in order to deal with the assets (the deceased’s property, money and possessions etc) that make up their estate. An Executor has a key role to play in dealing with the distribution of a deceased person’s estate and is a position of significant responsibility that should be taken seriously. We have provided a brief outline of an Executor’s role and responsibilities and what you should do if you have been appointed.

What is an Executor?

An Executor is the title given to the person who is responsible for dealing with the administration of the deceased’s estate. The Executor is responsible for ensuring that the estate is distributed in accordance with the terms of the deceased’s Will and the law of Scotland. It is common for close relatives, friends or a solicitor to be nominated as Executor under the terms of a Will. However, if the deceased did not appoint an Executor in their Will or died without a Will, an Executor can be appointed by the Sheriff Court. The Succession (Scotland) Act 1964 determines who is entitled to be appointed in such cases. An Executor is entitled to instruct a solicitor to act as Agent to assist with the administration of the estate and the Will usually provide for all fees and expenses to be met from the estate.

What does an Executor do?

1. Funeral Arrangements

An Executor has various responsibilities. The first steps an Executor will have to take following a death is to register the death and make funeral arrangements. The deceased may have given an indication of their wishes in their Will, or may have a prepaid funeral plan in place. In the absence of any wishes in the Will, the Executor is entitled to make reasonable arrangements. If there is no estate to cover the costs of the funeral, it is possible to apply for a funeral support payment to help towards these costs.

2. Investigate the extent of the Estate

The Executor is required to check the terms of the Will, identify the beneficiaries and determine what assets belonged to the deceased at the date of their death. The Executor must also ascertain the value or balance of the assets (including property, bank accounts, shares etc) at the date of death.

Depending on the type of assets a person has or in some cases the value of particular assets, the Executor may be required to obtain what is known as Confirmation (the Scottish equivalent of probate) before they are able to deal with that asset. Each organisation will have different requirements and will need to be contacted and advised of the death, asked to provide the value/ balance of the asset as at date of death and asked to advise what their requirements are and if Confirmation will be required. It is often the case that some assets can be ingathered without Confirmation but it may still be required for others.

As well as the assets position, the Executor should also determine any debts and liabilities of the deceased so that these can be settled before the estate is distributed to the beneficiaries. The Executor should be satisfied that there are sufficient assets to cover all liabilities before settling anything other than funeral related expenses (which are always settled ahead of anything else).

3. Pay Inheritance Tax (“IHT”) if due

Once the estate has been valued, the Executor must work out if the estate is liable to pay IHT. An estate is generally liable to IHT if the value of the assets at the date of death, together with the value of any chargeable gifts made in the 7 years prior to death exceeds the Nil Rate Band (currently £325,000). Other allowances may be available depending on the circumstances. If the estate is liable to IHT, the Executor must send the necessary paperwork to HMRC. It is advisable to pay any IHT due as soon as practicable to avoid having to pay interest. Tax is payable 6 months after the deceased’s death, with interest applied thereafter.

4. Apply for Confirmation

• When there is a Will

If Confirmation is required to deal with the deceased’s assets, this involves the Executor lodging an Application to the Sheriff Court. Part of the Application is an Inventory of all the assets the deceased owned at the date of death, together with each asset’s value or balance at that date. Confirmation, once granted can then be exhibited to each organisation (banks, building societies etc.) together with the Executors instructions for dealing with that asset. This shows the organisation that the Executor is the appropriate person entitled to deal with the estate and that they are therefore paying funds out to the correct person who is entitled to receive it on behalf of the estate. In limited cases, Confirmation may not be required at all.

• When there is no Will

When there is no Will, the Executor (once appointed by the Court) will need to obtain an insurance bond known as a Bond of Caution, before the Court will grant Confirmation. The Bond is designed to protect the beneficiaries and creditors of an estate against improper distribution by the Executor. A one-off premium is payable based on the value of the estate.

5. Ingather the Estate

Once Confirmation is granted, if required, the Executor has the Court’s legal authority to deal with the assets in the estate and can then instruct the sale/ transfer or property, close bank accounts and cash in or transfer investments etc. At this stage, any outstanding debts and expenses due by the estate are settled. The Executor is also responsible for keeping accurate accounts of all their dealings with the funds of the estate and reporting to the residuary beneficiaries.

6. Tax

As well as ingathering the estate and settling liabilities, the Executor is also required to finalise the deceased’s tax affairs. There are 3 taxes which need to be considered:

• Income Tax

Depending on how complex the deceased’s affairs are, the Executor may need to complete an Income Tax return for the tax year to date of death. In most straightforward cases, this will not be necessary, but HMRC will ultimately advise. An Executor will also have to report to HMRC for any untaxed income received during the period of administration, such as bank interest, dividends, rental income etc. These are all paid Gross and so Income Tax will need to be paid before the estate is distributed.

• Inheritance Tax (IHT)

As noted above, if Inheritance Tax is due, this requires to be reported to HMRC and any tax due, paid before Confirmation can be granted.

• Capital Gains Tax

If any assets are sold during the period of administration (e.g. the sale of the property, shares, investments) at a gain from the date of death value and the overall gain/ loss position results in a gain, Capital Gains Tax may be payable. An estate benefits from the same allowance as an individual (£12,300) for the tax year in which the death occurred and the following 2 tax years. Therefore, provided the overall position does not result in a gain in excess of this amount, no tax liability will arise. Otherwise, residential property gains are taxed at 28% and 20% for all other assets. Losses can be offset to reduce the value of the gains.

It is also possible for assets incurring a gain to be appointed to beneficiaries before sale, so that their individual allowances (provided these are not already used up for that year) can be used to offset gains to reduce or avoid an estate liability.

7. Distribute the Estate

The Executor must then distribute the estate in accordance with the terms of the Will and the Law of Scotland which make provision for things such as Legal Rights (the rights of surviving spouse and children) which apply regardless of the terms of the Will. It is advisable to allow 6 months to pass before distributing the estate. This is the time that creditors have to lodge a claim on the estate. This is important to note as the Executor will be personally liable for these debts if they finalise the estate within 6 months of the date of death.

Contact our Private Client Team

Dealing with a loved one’s estate can sometimes be an overwhelming experience. If you have been appointed as an Executor and would like further advice from one of our experienced and approachable Private Client Solicitors, please call 01383 620222 or email us at info@morganlaw.co.uk

WHY SHOULD I MAKE A WILL?

We come into this world with nothing and, ultimately, we leave with nothing. So what happens to the property we have acquired during that time? And what control do we have over what happens to it? How do we ensure it goes to our loved ones? How do we plan in a tax-efficient manner? Mirella Marchini, one of our Private Client Associates, has written this short article explaining why having a professionally-prepared Will can save a great deal of money, time and stress.

The ‘law of succession’ is the branch of law that deals with what happens to our property when we die i.e. it deals with the question of ‘who gets what’. By ‘property’, we mean property of all kinds; that could be a house or land (sometimes referred to as ‘heritable property’ or ‘heritage’) or cash in the bank, shares, your car or your shoe collection (‘moveable property’ – i.e. anything other than houses and land). This distinction between property types can be important, since different legal rules may apply to different types of property.

The property that we leave is called our ‘estate’. This sounds rather grand but it simply means the sum total of everything that we own, regardless of its value. The ‘net estate’ means what is left after all debts of the deceased (the person who has died) have been paid. It is often wrongly thought that debts ‘die with you’ but that is not the case. Debts are the first things to be deducted from the estate – even taxes are calculated after the debts have been paid.

In this article, we will refer to a wife, husband or civil partner simply as a ‘registered legal partner’. This is important since the law of succession is very different for married couples and civil partners than it is for partners who do not fall into either of these categories e.g. an unmarried couple living together.

So let us look at two situations:  i) dying without a Will and ii) dying with a Will.

What happens if you die without a Will?

Although most people realise that having a Will is a good idea, it is very common for people to die without ever having ‘gotten round to it’. This is called ‘dying intestate’ i.e. without a Will. To avoid a ‘free-for-all’, the law has provided certain rules (called ‘rules of intestacy’) that dictate what will happen to your property if you don’t have a Will. The obvious problem is that these rules may not correspond with what you would have intended to do if you had actually gotten round to putting a Will in place. We will return to this problem shortly, as not having a Will causes another problem before we even discuss how the estate is to be divided.

That problem is that, whether or not there is a Will in place, in Scotland the estate of the deceased can only be handled by a person called the ‘executor’. An executor is a person appointed to administer the estate. Therefore, before anything can be done with the estate, an executor must be appointed. Executors will normally be appointed by a properly drafted Will, but what happens if you die and there is no Will in place? Your family will need to apply to the court for an executor to be appointed. The law specifies the persons who are entitled to be appointed by the court as executors (‘executors dative’) in cases like this. This will be a relative (usually the surviving legal registered partner) or, if there is no such person, a beneficiary of the estate. However, this naturally results in increased costs and delay. It may also result in the appointment of an executor that would not have been your preferred choice. Further, an executor appointed by the court will be required to arrange an insurance policy to protect the estate. This insurance policy is called a ‘bond of caution’ and would not have been required if the executors had been appointed by a Will.

So, let’s say that your family have been to court, had executors appointed and have arranged the required insurance policy. What next? Since there is no Will, the executor of your estate will look to the rules, mentioned above, that will apply.

The details of these rules are complex and outside the scope of this article but, briefly, they mean that in most cases a registered legal partner will acquire the deceased’s share of the house he or she owned, as long as the surviving registered legal partner resided in such a property too. The surviving registered legal partner will usually be allowed to keep all of the furniture of such a property and will receive a cash sum from the estate by virtue of what are referred to as ‘Prior Rights’, a technical term in succession law. Please note that limits apply to the value of the estate that can be acquired under these ‘Prior Rights’. In addition to this, both the surviving registered legal partner and children of the deceased will be ‘reserved’ a share in the moveable estate (‘Legal Rights’). Once the ‘Prior Rights’ and ‘Legal Rights’ have been satisfied, whatever is left (if anything), will be distributed amongst the children of the deceased. If there is no surviving registered legal partner or children, the rules then look to parents and/or siblings and, failing that, to more distant relatives. The precise division of an estate depends on several factors, including the value of the estate. Further, such a division is relatively crude: it does not allow for efficient tax-planning; it does not automatically provide for more distant relatives e.g. grand-children, nieces, nephews etc, or to charities or friends if that is what you would have wished; it does not allow provision to be made for vulnerable or disabled children by the use of trusts; nor does it allow for protection of the deceased’s estate from potential future care fees which may eventually be incurred by the surviving registered legal partner.

It is worth mentioning that for couples who are living together (i.e. cohabiting), making a Will becomes even more important since a cohabitant does not enjoy the same protection as a registered legal partner. Even though there are laws which allow a cohabitant to make an application for a share in the estate of a deceased partner, there is no automatic right to such a share, and the application must be made to the court. It is also worth noting that, despite continuing folklore to the contrary, there is no such thing in Scots law as a ‘common law wife’ or ‘common law husband’ or ‘common law civil partner’. None of these mythical beasts have any legal significance whatsoever.

In summary, the main points to be taken from the above are that having no Will in place means that:

• More work will be required to administer the estate;
• Dealing with the estate will be more expensive;
• Your estate may not go to those you wanted it to go to;
• Opportunities for efficient tax-planning are lost.

So what are the advantages of having a Will?

Let us now look at the advantages of having a Will in place. Whilst a professionally drafted Will has an associated cost, it will become clear that this will be far less than the additional expense (and inconvenience) mentioned above.

In your Will, you can appoint executors that you know and trust. It is good practice to appoint more than one (even executors can die and this is very inconvenient if they decide to do so while only half-way through administering your estate…!). They will usually be family members, but don’t have to be. Appointing executors by Will is also free, unlike court- appointed executors, and they will not be required to obtain an insurance policy before dealing with the estate, unlike executors appointed by the court.

Of course, the main point of a Will is to make sure that your estate goes to those that you want it to go to, and in the shares that you decide. This is where the real value of a Will becomes apparent. You can specify the beneficiaries (those you are leaving something to) and precisely what each beneficiary is to receive. A Will allows much greater flexibility such as using a trust for a vulnerable or disabled child or until a child reaches a certain age. A legal device called a ‘liferent trust’ may be used to allow a surviving partner (whether married, civil partners or cohabiting) to live in a house owned in common (usually referred to as being in ‘joint names’) for the remainder of that partner’s life, after which it will then pass to another specified person or persons e.g. children of the relationship. A liferent trust can also be used to preserve the deceased’s share of a house for the next generations. Even if the surviving partner goes into long term care, the deceased’s share of the property will not be affected as it passes to another beneficiary or beneficiaries when the liferent comes to an end (the deceased can specify in the Will that the liferent is to end under specific conditions e.g. if the surviving partner remarries or goes into long-term care).

From the above, the advice is clear: it is always best to have a Will in place. This gives certainty, reduces administration and costs, protects assets and allows efficient tax planning. Your Will should be reviewed regularly and updated when necessary as your personal circumstances change.

Mirella Marchini is a dual-qualified Scottish and Italian solicitor, registered to practise law in both Scotland and Italy. She specialises in Succession law, Wills, Executries and Inheritance tax planning and deals and advises on complex Scottish-Italian estates and inheritance matters. Mirella also deals with the purchase and sale of property in Italy. You can get in touch with Mirella by emailing mirellamarchini@morganlaw.co.uk or calling  01383 629849.

Morgans Covid 19 Policies

Now that we are moving toward further easing of the current lockdown restrictions, we have set out some straightforward, client-friendly policies to help guide you through what you can expect from us and what we expect from you in the coming weeks and months.  We’re still business as usual, but not quite as you know it!

To review our Risk Assessment Document click here >>

To review our Client Access to Office Policy click here >>

To review our Lettings Viewing Policy click here >>

To review our Marketing Your Property Policy click here >>

To review our Viewings Policy click here >>

Housing Market to Re-open on the 29th of June

The much-heralded re-opening of the housing market has been confirmed for the 29th of June. The First Minister, Nicola Sturgeon, confirmed that Scotland was moving to phase 2 of the Route Map. This means that our Property team will be in touch over the next week to organise the viewings and valuations which will take place from the 29th June. For those whose houses were already on the market when the lockdown struck, we will also be able to arrange viewings.

In relation to the housing market, phase 2 of the route map out of lockdown says that we can:

• Visit an estate or letting agent, a developer’s sales office or a show home
• View a property you’re looking to buy or rent
• Prepare a property to move into
• Move house
• Visit a property to undertake any activity required for the sale of that property (surveyors and valuers will be able to visit to prepare the Home Report and property marketing particulars).

This will be a massive relief for those who are looking to move house. There will, of course, be precautions and our experienced staff will guide you through all the steps you should take to protect yourself and your family from any possible coronavirus infection. It has always been important to us to ensure that we are complying with the government guidelines all along and we are glad that the end is now in sight.

There is a phenomenal amount of pent up demand to view properties and for us to provide valuations so please bear with us. We have prepared a questionnaire which will be sent to all of those on our lists and our team are already working on organising these viewings.

Our experienced valuation and negotiating team are available and will be ready to help promote your property in the best light possible. We aim to win you the best available deal when you sell your house.

Our conveyancers have also been working throughout the lockdown, dealing with ongoing conveyancing cases. Those cases where we had to re-negotiate entry dates will now be able to proceed from the 29th June because our clients will then be able to physically move house.

We will all continue practising social distancing and are preparing our offices to re-open and welcome you all in. Our solicitors will be seeing clients by appointment only and as such our doors will remain closed. We do however have our screens, masks, sanitising stations and floor markers in place and look forward to the day when clients can just drop in without an appointment. Until then, we’ll continue to deliver the highest level of professional services across our estate agency and legal sectors as we possibly can to serve our clients during this difficult time.

Please also remember that we provide a wide range of legal services and will be happy to assist you during this difficult time. Should a socially distanced face to face meeting not be possible there are many other ways we can discuss your needs with you.

If you are thinking about buying or selling or need help with a legal matter, please get in touch.You can call our Dunfermline office on 01383 620222 or email info@morganlaw.co.uk or our Kinross office on 01577 863424 or email kinross@morganlaw.co.uk

When will Scotland’s property market re-open?

On 21 May, the Scottish Government published ‘Scotland’s Route map through and out of the crisis’ which set out how and when we might ease our lockdown restrictions, but how does that apply to the housing market and home moves?

Phase 1 – prepare for the safe reopening of the housing market

 During phase 1 the stay at home guidance remains the same and so Sellers and Buyers are urged to delay moving while these restrictions remain in force.

• No home visits should take place by any other person or business in relation to anything connected with the purchase, sale, letting or rental of residential property.
• Surveyors should follow the latest guidance and may continue to support the property market providing Home Reports etc if they can do so in a way which is fully consistent with the social distancing advice.  
• Solicitors and Estate Agency firms are urged to use their own professional judgement on what situations mean a house move is necessary. A firm can conduct a valuation and engage with other professionals as needed, if they deem the circumstances appropriate.
• Members of the public should not leave their home to progress any aspect of the purchase, sale, letting or rental of residential property, other than for a reasonably necessary move as per the guidance of 31 March.  ‘Reasonably necessary’ may include where a new date of entry cannot be agreed.
• Solicitors and Estate Agents etc resuming in later phases can undertake preparatory work on physical distancing and hygiene measures by permitting staff to prepare premises for the relaxation of the restriction of housing moves in Phase 2.

Phase 2 – relaxation of restrictions on housing moves

• No specific start date for phase 2 yet. As soon as we have more information on Phase 2 we will provide an update. We anticipate this will be on or around the 18^th June. In order to progress, there needs to be evidence of the virus transmission being controlled. If it remains suppressed, then gradually, more restrictions will be removed.
• During phase 2 members of the public will be allowed to leave their homes in order to undertake certain activities in connection with the purchase, sale, letting or rental of residential property, including: –
• Visiting estate or letting agents, developer sales offices or show homes
• View residential properties to look for a home to buy or rent
• Prepare residential property to move in
• Move home, or
• Visit residential property to undertake any activities required for the rental or sale of that property.

This will allow Agents and Surveyors etc to travel to work where necessary to undertake these activities in a safe manner.

• Home Moves will no longer have to be reasonably necessary; home moves will be permitted.

 At the moment our valuers are happy to provide virtual and desktop valuations and generally have a chat through your property related questions.

As well as concentrating on the behind-the-scenes preparations ahead of the re-opening of the property market in Phase 2, whilst we do love buying and selling houses for clients, we also provide a broad range of other legal services: –

• Private Client (Wills, Powers of Attorney, Executries & Guardianships)
• Family Law (Separations, Divorces, Contact etc)
• Litigation (Criminal and Civil Court matters)

and can continue to assist clients with their legal requirements, despite not being able to meet in person.

Although our offices remain closed to clients in accordance with Government advice, we can still advise clients and take instruction by telephone or email. With the help of modern technology, our solicitors can see clients via video calls (facetime/WhatsApp/Zoom etc) to verify ID and deal with the signing of documents remotely.

We’re working behind closed doors with reduced staff and are putting the necessary safety and hygiene provisions in place, so that we can welcome clients old and new to our offices just as soon as it’s safe and appropriate to do so.  Further updates will be provided as guidance becomes available.

Contact us by telephone on 01383 620222 or by email at info@morganlaw.co.uk and your query will be passed on to one of our team.

COVID-19 GUIDANCE FOR RESIDENTIAL LANDLORDS & TENANTS

Although our offices are temporarily closed to help keep us all safe and slow the spread of Coronavirus, we still have staff on hand from behind our laptops at home with our calls diverted to mobiles, to assist our landlords and tenants with any queries they may have in these difficult times.

The present advice is that we should all stay at home and only leave home for work if it is absolutely necessary. This applies to landlords, letting agents and tenants alike.

What is considered “absolutely necessary”?

• Move-ins where the incoming tenant is not able to postpone the move in date, for example because otherwise they would have nowhere to live.
• Emergency maintenance work e,g heating/hot water repairs, water leaks. If tenants are not willing to allow access for emergency maintenance work, then landlords should keep records of all attempts made to arrange access and ensure you continue to make repeated attempts to arrange access.  If access is allowed, you can take additional measures to ensure contractors and tenants remain in separate rooms during visits and follow government advice on cleanliness and hygiene, before, during and after visits.
• Move-outs to check the property is safe and secure – these should be done without the tenant being present and to reduce the risk of virus spread from surfaces, it is recommended that this is done 72 hours after the tenant has moved out.
• Letting Agents should continue to adhere to their in house procedures for rent collection and handling client money.

 Social distancing and personal hygiene to reduce the chances of spreading the virus is paramount.

What is considered unnecessary activity?

Most other property related activities are unlikely to be considered absolutely necessary.

• Property inspections should not be carried out at this time.
• It is up to lettings agents to decide whether to advertise a property but viewings should only take place in exceptional circumstances e.g if a tenant needs to be rehoused because their current property is uninhabitable.
• Where an individual/family is self-isolating or where a vulnerable person is shielding, moves should not take place unless required for urgent health and safety reasons.

Is rent still due?

Rent is still due under the terms of the tenancy agreement and tenants who are able to pay rent as normal should continue to do so.  Everyone is different, so some tenants’ financial circumstances may be worse or different to another’s and so landlords are encouraged to be flexible and have a frank and open conversation with tenants at the earliest opportunity to allow both parties to agree a sensible way forward, should there be any difficulties making payment.

Tenants who are in financial difficulty should check the latest Government guidance for financial assistance that is available.

What about the legal obligations to provide regular gas, electrical and fire safety inspections? 

Despite the initial advice to landlords and letting agents to postpone safety inspections until after the lockdown restrictions have been lifted, the Scottish Government conceded on 9th April that annual gas safety regulations are reserved to the UK Government and so these cannot be changed.

Landlords and Letting Agents are now advised to continue to try to get gas safety checks done wherever possible.

The Minister for Local Government, Housing and Planning has urged the Secretary of State for Housing, Communities and Local Government and the Health & Safety Executive to take a proportionate and pragmatic approach by providing a temporary extension of the statutory obligations in light of the current pandemic.

The Health & Safety Executive’s guidance is that each property should be considered separately and all reasonable attempts should be made for the inspections to be done and alternative Gas Safety Engineers sought if necessary.  If this is not possible, landlords should prioritise property inspections based on factors such as:-

• Age and type of appliances
• Previous maintenance works
• Breakdown history
• Presence of CO2 detectors
• Whether the tenant is vulnerable for reasons other than due to the Covid-19 pandemic.

Assistance for Landlords

The Scottish Government announced on 6th April that they will be offering financial assistance to Scottish landlords who suffer a loss of income as a result of the Coronavirus crisis by way of interest free loans that should be available by the end of April. Further details including how to apply will be updated as soon as this is available.  Although this is a loan, rather than a grant, it is a significant assistance to landlords being interest free, while bank finance is a relatively high cost for those who might need it. So far, there is no similar support for landlords in England & Wales.

Mortgage lenders have agreed to offer payment holidays of up to 3 months where this is needed due to a loss of income as a result of the Coronavirus pandemic.  If you are concerned, you should contact your mortgage lender.

Changes to eviction procedures  

 The Coronavirus (Scotland) Act 2020 is now in force.

The act protects tenants in Scotland from any eviction action for a period of up to 6 months and applies to both private and social rented housing sectors. This ensures the position is absolutely clear for all landlords and tenants in Scotland.

The Act contains specific provisions to prevent private and social tenants from eviction during the current outbreak by extending the notice period a landlord must give a tenant when ending a tenancy.

Notice periods are temporarily extended in most cases where landlords now need to give 6 months’ notice to a tenant unless they are ending the tenancy for specific reasons including anti-social and criminal behaviour by the tenant or where the landlord or their family need to move into the property, where the notice period is 3 months.

These changes do not apply to evictions where the landlord served notice on the tenant before 7 April 2020.

During this period, all evictions will be discretionary, which means that if the tenant doesn’t voluntarily vacate the property and the landlord has to apply for an eviction order at the Tribunal, the Tribunal may decide to exercise a reasonableness test in deciding whether to evict the tenant or not.  The Tribunal will make their decision based on the circumstances of each case and whether the tenant’s need/right to occupy the property is outweighed by the landlord’s need/right to repossess the property.

The legislation also changes the notice period that the landlord is required to give the tenant, depending on the type of tenancy and the ground for eviction being used. These vary from 28 days to 6 months’ notice.

The Housing and Property Chamber of the First-Tier Tribunal who hear eviction cases will not be hearing cases until at least 28 May, but this might be longer.  The Tribunal is making arrangements to close the Glasgow Tribunal Centre with only essential business continuing meantime. We await further announcements.

Someone in my HMO has the virus, am I required to remove them or find my tenants another place to stay?

The Government has issued specific guidance on what to do if someone in your household has contracted the virus, including self-isolating the whole household for 14 days.

Nobody can be removed from their home because of the virus.  Landlords are not obliged to provide alternative accommodation for tenants if others in the property contract the virus.

Should you have any further questions please do not hesitate to get in touch by emailing info@morganlaw.co.uk or calling 01383 620222.

MAINTAINING CONTACT WITH CHILDREN DURING COVID-19

Maintaining contact with children during Covid-19

If you are a parent to children who do not live in the same household as one of their parents, or where care is shared between the two parents in separate households you may be wondering how they can maintain relationships with both parents during the Covid-19 situation.

Can children travel between households?

The Government’s guidance states that we should all stay at home except for the following reasons:-
• Shopping for basic necessities, for example food and medicine, as infrequently as possible.
• One form of exercise a day, alone or with members of your household
• Any medical need, or to care for or help a vulnerable person
• Travelling to and from work, but only where this work absolutely cannot be done from home

HOWEVER, where parents do not live in the same household, the Government’s advice is that children under 18 can be moved between their parents’ homes. Of course, they should NOT do so if they are showing symptoms of the virus or are otherwise required to self-isolate.

The rules on self-isolation and any restrictions advised by medical professionals will ALWAYS take priority!

Should we stick to existing arrangements?

There are generally good reasons to keep as close to existing arrangements as possible. However, for the duration of Covid-19 you might want to consider ways in which the arrangements can be altered to cut down on unnecessary travel. This might include:-

• Having fewer periods of contact, even if this means amalgamating shorter periods into longer ones.
• Replacing overnight contact involving longer journeys with trips to the park close to home for exercise.
• More use of Skype, Facetime and similar apps.

It is important that parents try to reach agreement on any changes to the usual arrangements and that the views of the children are properly taken into account.

What if there is a Court Order?

Generally, the same considerations will apply even if there is a Court Order regulating the residence of and contact with the children. The Courts have issued guidance for parents of children who are the subject of Court orders. This guidance can be found here – https://www.scotcourts.gov.uk/docs/default-source/default-document-library/guidance-on-compliance-with-family-court-orders-27-03-20.docx?sfvrsn=0

Can Morgans Help?

Our Court solicitors, Brian Tait and Russel McPhate can be contacted on the numbers and email addresses below. They will be able to advise you with any issues you may have with contact arrangements.

Brian Tait – 01383 629824 or briantait@morganlaw.co.uk
Russel McPhate – 01383 629823 or russelmcphate@morganlaw.co.uk

PREPARING A WILL DURING COVID-19

Can I have a Will prepared or update an existing Will during the Covid-19 pandemic?

Yes!

While staff wellbeing and safety is of absolute importance in these unprecedented times, we can still assist with the preparation of your Will or updating your existing Will, with a little help from modern technology. Our offices are currently closed and staff are working from home with access to our systems and calls diverted to mobiles wherever possible.

How can I provide my instruction?

Although we can’t meet with you face to face, we can arrange a telephone appointment with you to discuss your Wills and take your instruction. To provide proof of identity, we will need you to scan and email your ID to us in the first instance.

We will then prepare your Will/update your existing Will in accordance with your instructions and either email the documents to you or send them out by post (as soon as we possibly can when available staff are in the office). We can then again by telephone, or by email discuss the drafts with you.

How can we deal with signing?

If you are happy with the documents prepared and are happy to sign, we can arrange a video call (via facetime, messenger, whatsapp etc) so that we can see each other face to face, discuss the documents in detail and walk you through the signing formalities.

Do I need to have a witness?

Ideally, if possible, you would have an independent person (who is over the age of 16 and not a member of your family or mentioned in your Will) to be present at the signing meeting, to sign as a witness.

What if no witness is available?

If a suitable witness is not available and able to be physically present when you are signing your Will, we can witness you signing each page via video call such as facetime, whatsapp, messenger etc (provided we physically see you sign each page during the video call). You can then return the signed Will to us by post. On receipt of the signed Will, we can legitimately sign and complete the signing details. The Law Society of Scotland anticipates that this would be deemed to form one continuous process as required by the legislation. You will be asked during the video call show us the ID that you have emailed to us, so that we can verify they are the same and that the photo ID is a true likeness of you.

I am self-isolating or don’t have access to video call facilities…

If you are self-isolating and no witness is available physically with you and there are no video facilities available, your signature alone is enough to make your Will a valid Will. If your Will remains in this state until your death, while it will be valid, it will be necessary as part of the Confirmation process (the Scottish equivalent of Probate) to “set-up” the Will as having been signed by you, by Affidavit evidence as to your signature. For this reason, it will generally be preferable to replace such a Will by a formally executed version when the current conditions are lifted.

Can’t you just do everything by telephone?

Given the need for identity checks, assessments of capacity and/or checks for undue influence to be carried out it is not possible to take instructions solely over the telephone and then send a document to a client for signing. Despite the very real, practical difficulties that the profession face in the current climate the requirements of the Law Society of Scotland cannot be waived.

Where no possible visual contact at all can be made, what a solicitor can do is limited. However, you can write out clearly your own will or other testamentary instruction. Signing alone, while not ideal, will generally create a valid testamentary instruction and we can supply details of what is required for formal validity involving an independent witness. This should always be considered as a temporary measure should the worst happen before the restrictions are lifted and we would always recommend that you ask us to formally prepare your Will and attend to signing and witnessing in the usual way just as soon as possible thereafter.

How can I get in touch?
Our Private Client solicitors, Craig Bennet, Lynsey Rintoul, Mirella Marchini can be contacted on the numbers and email addresses below. They will be able to guide you through the process:-

Craig Bennet – 01383 629814 or craigbennet@morganlaw.co.uk

Lynsey Rintoul – 01383 629825 or Lynseyrintoul@morganlaw.co.uk

Mirella Marchini – 01383 629849 or mirellamarchini@morganlaw.co.uk

POWERS OF ATTORNEY DURING COVID-19

What is a Power of Attorney and do I need one?

A Power of Attorney is a document that lets you set out who you wish to make certain decisions on your behalf should you require assistance or otherwise be deemed to be suffering from mental incapacity by a Doctor or Psychiatrist. No-one has authority to make decisions on your behalf or undertake actions regarding your personal finances or health and welfare without being appointed as your Attorney. It does not matter how close the family relationship, there is no legal authority without Power of Attorney.

Powers of Attorney that are to begin or continue in the event of a granter’s incapacity must be registered with The Office of the Public Guardian before the deed can be used. This applies even during these difficult times. Attorneys cannot act until the deed is registered.

Can I have a Power of Attorney prepared during the Covid-19 lockdown?

Yes, but the Office of the Public Guardian are currently only registering critically urgent applications.

What is considered as critically urgent?

For example, if a person is in hospital and powers are required for attorneys to act immediately to allow decisions to be taken, the Office of the Public Guardian will process this request urgently.

What if I just want a Power of Attorney for peace of mind for the future or I am in a high risk category for Covid-19?

Unfortunately, this is not considered a reason for The Office of the Public Guardian to deal with the registration of the deed to as critically urgent. This applies regardless of your whether you are considered high risk.

We can still assist with the preparation of your Power of Attorney with the help of modern technology, if you have access to video call facilities such as Facetime, WhatsApp etc.

Where a new client wishes to instruct us in a power of attorney matter we will need to exercise our own judgement as to whether or not it is appropriate to conduct the entire piece of business using video technology. It is not to say that it would not be compliant with the relevant legislation. However, the professional obligations to ascertain relevant capacity, and to ensure that there is no undue influence or other vitiating factor, can prove to be more difficult when no physical meeting takes place. It is for those reasons that caution should be exercised in proceeding in this way for new clients.

Is there anything else I can do so that someone else can help me?

Other alternatives to having a Power of Attorney may be available to help when a non-urgent Power of Attorney cannot be processed e.g. third party mandates. This option can give authority to carry out everyday banking transactions on someone’s behalf and may provide useful in the current climate, offering a temporary measure while a non-urgent Power of Attorney is waiting to be processed.

How can I contact you about Power of Attorney?

Our Private Client Solicitors, Craig Bennet, Lynsey Rintoul and Mirella Marchini can be contacted on the telephone numbers and email addresses below:-

Craig Bennet – 01383 629814 or craigbennet@morganlaw.co.uk

Lynsey Rintoul – 01383 629825 or lynseyrintoul@morganlaw.co.uk

Mirella Marchini – 01383 629849  or mirellamarchini@morganlaw.co.uk

IMPACT OF CORONAVIRUS ON HOUSE SALES & PURCHASES

Coronavirus and the impact on House Sales and Purchases

Like everyone, Morgans is closely monitoring Government and NHS guidelines in the fight against Coronavirus. During these unprecedented times, we are now working from home wherever possible with IT links to the office and calls diverted to mobiles, so that we can keep in touch with our clients and continue to offer our services as best we can. Staff and client safety is of absolute priority and so we ask all clients to have patience and bear with us as we work tirelessly from behind our laptops from home to keep working in all service areas in these unforeseen circumstances.

The Law Society of Scotland has issued specific guidance to all Solicitors over many practice areas, including the sale and purchases of residential property. All guidance reiterates the importance of the Government restrictions and that we must not do anything which in any way conflicts with the restrictions.

What is the guidance?

Like each and every one of you, we are being asked to Stay at Home, Protect the NHS and Save Lives. This applies to each and every aspect of our day to day lives. We appreciate that moving house is a stressful time and more so in the current circumstances. However, the guidance must be followed to ensure the safety of staff and clients alike. We are not an exception.

The Law Society views the sale and purchase of houses during the current lockdown period to be unnecessary contact between and among individuals and that we are obliged, wherever possible to postpone or defer entry dates and the settlement of sales and purchases.  

 The Registers of Scotland has currently closed the Registers to applications, meaning that most transactions cannot be completed regardless of whether the buyer and seller are happy to proceed.

This is entirely out-with the control of the legal profession.

The Law Society of Scotland has worked closely with The Registers of Scotland to provide guidance to Solicitors and the message is clear:-

Although interim measures have been put in place to allow a very limited number of transactions to take place, the strong recommendation remains that parties should reschedule rather than settle during the closure of the Application Record.

 In addition to the legal challenges, house moves are now almost logistically impossible due to removal firms closing. Anyone involved in a house move during this time is putting themselves, their families and all professionals involved at risk.

Unfortunately, this means that in almost every purchase and sale transaction, we must advise that settlement is postponed until the restrictions are lifted.

We are committed to do all that we can to progress transactions just as soon as we are able to do so. As it seems that lockdown will continue for some time, there is no definitive answer on when transactions will be able to be completed, but as the restrictions apply to all of us equally, we hope that common sense will prevail between Solicitors, the Solicitor acting for the other party and all clients involved.

Your Solicitor will continue to keep you updated regularly and can be contacted on the usual telephone numbers and emails to answer any questions you may have.

What are the interim measures that have been put in place and do they apply to my transaction?

The Registers of Scotland and The Law Society of Scotland have put in place interim measures to allow a very limited number of essential transactions to proceed to settlement in the next week or so.  The obvious risk of settling a transaction during the closure of the Application Record is that the purchaser’s title and the lender’s security cannot be registered. This leaves the purchaser’s title and the lender’s security at risk from the insolvency of the granter of either deed. The normal protection against this by the registering of an Advance Notice only applies for a period of 35 days from the registration of the advance notice and so if titles cannot be registered during this time, the protection is lost.

The Registers of Scotland has therefore extended the protected period as an interim measure for essential transactions only to ensure that a deed for a settled transaction remains protected beyond the period of the application register closure so that registration at that point can be effected.

Despite this interim measure, the strong recommendation is that parties to transactions should attempt to reschedule rather than settle during the closure of the application register.

Only cases where the failure to settle will result in “severe financial or personal consequences” to one, other or all of the parties to any transaction, should efforts be made to complete the transaction, rather than postpone settlement. 

 We will of course do all that we can to settle your transaction if you fall within this category, but this will only apply to a very limited number of emergency cases i.e where a person might otherwise become homeless or experience significant financial hardship as a result of their transaction not settling.

These links will provide further information:

https://www.gov.scot/publications/coronavirus-covid-19-guidance-moving-home/

https://www.lawscot.org.uk/news-and-events/law-society-news/coronavirus-updates/

Further updates will be provided as and when further guidance becomes available. In the meantime, we would ask that all clients follow the guidelines and take a sensible approach to their transaction in these difficult times.

Stay Safe!