Legal Practice Notes

When a solicitor prepares a Will that, owing to flawed tax advice, fails to give effect to the testator’s intentions, a claim may lie to recover the ensuing loss from the solicitor. Such claims are often intricate and require careful consideration of: the identity of the proper claimant the legal foundation for the claim the consequences for the limitation period(s) Examples of claims Two leading authorities— Daniels v Thompson and Rind v Theodore Goddard—concerned clients who, acting on advice, made lifetime gifts intended to be exempt transfers. However, those gifts were caught by the reservation of benefit rules (see Practice Note: IHT—gifts with reservation of benefit), which the solicitors had either failed to advise upon altogether (in Daniels v Thompson) or to avoid (in Rind v Theodore Goddard). The consequence in both matters was that the relevant gift was treated as part of the deceased’s estate for...

Before creating a new matter, a probate practitioner instructed by personal representatives ( PRs) to administer a deceased person’s estate must complete a series of initial client checks (see Practice Note: Preliminary checks on prospective new clients). This Practice Note outlines the practitioner’s next actions when gearing up for the first client meeting. For fuller guidance, consult Client and matter inception—overview and related materials within the Lexis Nexis® Practice Compliance module. The Solicitors Regulation Authority The Solicitors Regulation Authority ( SRA) Code of Conduct (the Code) in its current form took effect on 6 April 2023, as part of the SRA Standards and Regulations that replaced the former SRA Handbook. The SRA Standards and Regulations define the standards and obligations expected of the regulated community, for the benefit of the clients they serve and in the public interest. There are seven mandatory...

Follow the link below to save the training presentation. Contents Essential terms Core legislation Immediate actions after death Personal representatives ( PRs) Right to the estate Rules of intestacy Grant not invariably required Inheritance tax account Applying for a grant Types of......

Much of the activity in a probate file involves informing people and organisations of the death, obtaining valuations and other details, applying for the grant of representation and realising the assets. As a result, practitioners frequently need to send the same letter, or slight variations, repeatedly. Many information requests are routine, and these Precedents can be adopted unchanged or adapted and expanded to fit the facts. In some instances, institutions operate their own processes for providing details and closing accounts, often set out on their websites. The wording used in the application leading to the grant of representation must be tailored to the exact situation, and a range of commonly used Precedents appears below. Client guides Family members or personal representatives ( PRs) may contact the practitioner immediately after death. These client guides can help explain to them the urgent practical and other...

FORTHCOMING CHANGE: Following the Government’s reply to the Ministry of Justice and the Office of the Public Guardian ( OPG) consultation, Modernising Lasting Powers of Attorney, the Powers of Attorney Bill secured Royal Assent on 18 September 2023 and is now the Powers of Attorney Act 2023 ( PAA 2023). The majority of the Act’s provisions have not commenced, awaiting secondary legislation. Once commenced, the PAA 2023 will make amendments to the Mental Capacity Act 2005 ( MCA 2005) to deliver a more up-to-date lasting power of attorney ( LPA) service......

Personal representatives ( PRs) are tasked with bringing the deceased’s tax affairs to a close. They must submit any outstanding returns and secure any repayments that are due. In most estates where tax was taken at source from investments (before 6 April 2016) and through PAYE on employment income and pensions, a repayment is often due because the deceased is entitled to the personal allowances for the entire tax year, not merely the period up to the date of death. The tax outcome for those within Self Assessment will hinge on their income streams, whether returns and accounts were up to date, and the point in the tax year at which death occurred. For details of current tax rates and allowances, see Practice Note: Key UK tax rates, thresholds and allowances for Private Client. PRs should examine the deceased’s tax position up to the date of...

ARCHIVED This Practice Note summarises the state support potentially available to older clients and clarifies how means testing operates for both income and capital. It also considers the rules on deliberate deprivation of income or assets, both for social security benefits and for local authority care charges under the Care Act 2014. Benefits for older people fall into three strands: contributory (dependent on sufficient National Insurance contributions), non‑contributory and non‑means‑tested (based on status such as age or disability), and means‑tested (assessed against the claimant’s income and capital). Relevant Benefits Pension and pension related benefits New State Pension Graduated Retirement Benefit (historic entitlement) Guaranteed Minimum pension—contracted out rights Pension Credit—guarantee credit and saving credit War pensions—where applicable Disability—related benefits Attendance Allowance Personal Independence Payment (for those below State Pension age) Industrial Injuries Disablement...

Care and support needs or community care assessments Care and support needs, also known as community care assessments, are undertaken by the local authority ( LA) for adults aged 18 or over who are ordinarily resident in its area. An LA is obliged to assess as soon as it becomes aware, or is asked, that someone may have care and support needs which the LA should meet. The process is governed by section 9 of the Care Act 2014 ( CA 2014), requiring the authority to decide: whether the adult has needs for care and support and, if so, what those needs consist of. Once the LA determines the person meets its eligibility criteria (see below), it must arrange or provide services to meet the assessed care and support needs. Since the CA 2014 took effect in April 2015, all LAs must follow the Care and...

ARCHIVED: This archived Practice Note summarises Lifetime ISAs, covering their legislative basis and main characteristics. It is not maintained. What is the Lifetime ISA? The Lifetime ISA launched on 6 April 2017 for adults aged under 40. Individuals may save up to £4,000 each year and receive a government bonus worth 25% of their contributions. Money held in a Lifetime ISA can fund a first home purchase or be taken tax free once over age 60. For more detail, see Key aspects of the Lifetime ISA, below. In Budget 2025, the government signalled its intention to replace the Lifetime ISA with a new product targeted solely at first-time buyers. Opening a Lifetime ISA will still be permitted until the new product goes live, and current holders may continue contributing to their Lifetime ISA...

For broader details on Jersey, refer to Spitz & Clarke Offshore Service: Jersey [ JER.1]. What is a Jersey foundation? The foundation is a civil law construct and a statutory creature under Jersey law, brought in by the Foundations ( Jersey) Law 2009 ( Law). Best thought of as a hybrid, it combines company-like features with purposes akin to a trust. As with a company, it has separate legal personality and a council that manages its affairs, functioning much like a board of directors. However, it has no shareholders, and unlike a trust there are no beneficiaries with rights in the foundation’s assets or owed any fiduciary duty. Accordingly, a foundation has no owners and is viewed as an ‘orphan entity’. Use of foundations A Jersey foundation can be employed for almost any lawful purpose, save for two exceptions rooted in Jersey’s public policy and...

FORTHCOMING CHANGE : The Trusts and Succession ( Scotland) Act 2024 secured Royal Assent on 30 January 2024, heralding the first overhaul of Scottish trust law in more than a century since the cornerstone Trusts ( Scotland) Act 1921. Provisions on trusts will only commence once Scottish Ministers introduce the necessary secondary legislation, while the succession measures took effect on 30 April 2024. Key updates designed to modernise the framework are outlined in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes across Scottish trusts and succession topics will be revised to reflect this new statute. This Practice Note addresses the steps for obtaining confirmation where there is no will (intestate estates). For wills-based estates, or elements of the confirmation process common to both testate and intestate cases, see Practice Note: Application for confirmation in...

FORTHCOMING CHANGE relating to IHT on pension death benefits In the Autumn Budget on 30 October 2024, the government confirmed that, from 6 April 2027, unspent pension pots and pension death benefits will be treated as part of an individual’s estate for inheritance tax ( IHT). This reform will cover both defined contribution and defined benefit arrangements, and will extend to UK-registered schemes as well as qualifying overseas pension schemes. A technical consultation on how these rules will operate ran from 30 October 2024 until 22 January 2025. For further detail, see: Autumn Budget 2024— Private Client analysis— Inheritance tax. Following a person’s death, there are immediate actions for family members, personal representatives ( PRs) and their advisers, including: Checking the deceased’s Will, where one exists Putting funeral plans in place Identifying the estate’s assets and liabilities ...

Under section 3 of the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975), the court is required to consider certain matters in every case, see Practice Note: Family provision claims—matters to which the court must have regard. There are further considerations that apply only to particular categories of claimant, and it is these specific issues that are examined in this Practice Note in detail here. Surviving spouse/civil partner or former spouse/civil partner (not remarried/formed a new civil partnership) For an application brought by a spouse or civil partner, or a former spouse or former civil partner who has not entered into a subsequent marriage or civil partnership, the court will, in addition, take into account: the applicant’s age in years the length of the marriage or civil partnership the applicant’s contribution to the welfare of the deceased’s family, including managing the home,...

Who has jurisdiction in respect of charities? The Crown, in its role as parens patriae, has the principal authority over the application of charitable assets, exercised through the Attorney General, although this authority has been widely devolved over time and in practice. The High Court retains inherent jurisdiction regarding charitable matters, as explained below in outline only. While this note addresses only the court’s jurisdiction, it should also be noted that: the Charity Commission exercises jurisdiction concurrent with the High Court for various purposes the First-tier Tribunal ( Charity) may review a limited category of Charity Commission decisions and hear appeals against many others, with the Upper Tribunal determining appeals from the First-tier Tribunal for certain charities, jurisdiction may additionally be exercised by Visitors Jurisdiction of the court The court’s inherent jurisdiction in relation to charity is exercised in the High Court within the Chancery Division, as a matter of...

This Practice Note outlines key factors for marital or civil partnership agreements where the couple have cross-border ties or property. It explains the actions required to secure advice from lawyers in any other pertinent jurisdictions, how the Supreme Court ruling in Radmacher (formerly Granatino) v Granatino applies to arrangements with an international dimension, and points to consider when drafting. Initial considerations Rules on recognition and enforceability of marital and civil partnership agreements are not uniform across the world. Places where these agreements are generally upheld include Australia, Canada, New Zealand, the USA and numerous European states. For practical direction on the position in England and Wales, see the Practice Notes: Implications of pre-nuptial agreements within proceedings for financial provision and Implications of maintenance, separation and post-nuptial agreements within proceedings for financial provision. In England and Wales, an agreement must be ‘fair’ and made by both...

Tainted charity donations rules The tainted charity donations rules, set out in Schedule 3 to the Finance Act 2011 ( FA 2011), are designed to prevent the misuse of reliefs linked to income tax, corporation tax or capital gains tax when a charitable gift is made. They achieve this by refusing those reliefs where HM Revenue & Customs ( HMRC) can establish that a donor, or someone connected to the donor, has entered into an arrangement with a charity with the purpose of securing a tax advantage from the gift rather than acting with entirely charitable motive. Chapter 8, Part 13 of the Income Tax Act 2007 ( ITA 2007) withdraws entitlement to any income tax reliefs and advantages Part 21C of the Corporation Tax Act 2010 ( CTA 2010) withdraws entitlement to corporation tax reliefs Section 257A of the...

An HMRC review of a charity once caused major anxiety; while still unsettling, HMRC now routinely select a number of charities each year for audit to check that the Gift Aid scheme is administered properly, in line with the rules, and that submitted returns are accurate. HMRC emphasise that being chosen does not, in itself, signal concern on their part, though they plainly also select organisations that have raised concerns. Trustees carry personal responsibility, and liability, to ensure every return is correct and lodged in a timely fashion, meeting all relevant deadlines. If their charity is selected for audit, they must make sure they are represented in discussions with the appointed auditor throughout the process. HMRC say they choose charities for audit both at random and on a risk basis, which suggests close attention to information from external sources such as the Charity...

This Practice Note explains what a determination (also known as a revenue determination) is for direct tax purposes (ie a direct tax determination) when HMRC may issue a direct tax determination the potential quantum of any direct tax determination the time limits within which HMRC can make such a determination the consequences of a determination for a taxpayer the ways in which a taxpayer may displace a direct tax determination For this Practice Note, unless expressly stated otherwise, determination means a direct tax revenue determination. For a practical, step-by-step aid to handling a direct tax determination, see: Practical steps for dealing with a revenue determination for direct tax purposes—checklist. Note that a revenue determination is not the same as a discovery determination. A discovery determination is akin to a discovery assessment; however, a discovery...

Charity trustees Section 177 of the Charities Act 2011 ( CA 2011, s 177) treats ‘charity trustees’—the individuals who direct and oversee a charity’s management and administration—as the charity’s decision-makers, and this notion is deliberately adaptable in scope and application. It is designed to fit any charitable legal form and to suit every model of governance that a charity may adopt. Where the charity is a company—ie a company limited by guarantee (or, on rare occasions, by shares) with exclusively charitable purposes—the company’s directors are regarded as the ‘charity trustees’ for the purposes of charity law. However, the term points to the governing body, rather than the wider senior management team, generally speaking. In some circumstances, for example where there is a two‑tier governance arrangement, individuals performing different functions within the organisation can nevertheless fall within the category of charity trustees. This...

The death certification regime in England and Wales came into force on 9 September 2024 after reforms arising from various enquiries, including the third report of the Shipman Inquiry (relating to murders first examined in the late 1990s). The package includes a statutory medical examiner system introduced as an extra safeguard. Although Private Client practitioners rarely handle the formalities of medical certification itself, these reforms also influence the procedure for the legal registration of deaths throughout England and Wales. Requirement to register a death Registering a death is ordinarily undertaken by a member of the deceased’s immediate family. The requirements in England and Wales are set by: Births and Deaths Registration Act 1953 ( BDRA 1953) Registration Service Act 1953 ( RSA 1953) Coroners and Justice Act 2009 Health and Care Act 2022 regulations made under each of those Acts Medical certificate of cause of death The registrar cannot register the death...