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This article serves to provide a very brief overview as to what to expect when attending a Police Interview.

Attendance at a Police Station is governed primarily by the Police and Criminal Evidence act 1984 (PACE).

Firstly, there are generally 2 ways in which one attends a Police Interview namely, voluntarily, or involuntarily.

The first thing to appreciate is that there is no possibility that attendance is ever quick although it depends on case-load.

Thanks to a Health and Safety cotton wool society, and apparent possibilities of abuse of human rights issues, the Police are drowned in a labyrinth of paperwork and administrative issues. The process is slow through no fault of the Police, but because of beaurocracy and the need for CYA (cover your arse), for want of a better term, in order to show that PACE has been rigorously followed.

The effects of an unsafe interview could undermine any case then brought b the Crown Prosecution Service.

Please note that any Defence Lawyer would soon pick up that any defects in procedure may render a Police Interview unreliable and therefore in admissible as evidence at Trial.

Therefore, expect the following:

1. You will inevitably spend a short while at any Police station, waiting to introduce yourself to reception staff, whilst other enquiries are being dealt with.

2. Once identified, you are usually escorted to a Custody Suite where you are asked a series of questions by the Custody Sergeant as to the following:

A. Your full name, and date of birth. How you describe your ethnicity, etc…your rights to have a Solicitor present, or to make  telephone call, which you then sign electronically to confirm your understanding;

B. Your health, how you feel, whether taking medication, suicidal tendencies or feelings of depression;

C. The contents of your pockets, which is recorded and signed for, including money, mobile phones etc…and then taken off you and kept in safe keeping whilst being interviewed;

D. Whether you need an interpreter…

You will then be taken into a room where the Police may take from you, inter alia, your photograph, full finger and palm prints, a swab of DNA etc…

Only, and I mean only then, do you enter a Police Interview Room. They are rooms with one table and around 4 chairs.

There is recording equipment where tapes are still used to record what went on in that room. There is usually also video CCTV cameras recording

A Solicitor and his client sit on one side of the table, and the Police sit on the other.

The Police usually caution you beforehand, explain the purpose of tapes and recordings, and tell you once more your rights to have a Lawyer present, and to make a phone call to let someone know where you are.

The tape starts, and the Police identify themselves for the purposes of the tape, and then identify you and your Lawyer who is invited to explain why he/she is in attendance etc…

A caution is usually repeated and the interview then, and only then on average an hour after, begins.

David Rosen is a Solicitor-Advocate Higher Courts (All Proceedings), Partner and head of Litigation at Darlingtons Solicitors. He is a member of various established associations and a visiting associate Professor of Law at Brunel University where he runs a Pro Bono course for the Brunel Law School Legal Advice Centre.

Probate

When someone dies it is necessary for their property and all their other possessions and money to be dealt with so that they can be passed on legally to the relevant people or organisations. Probate is the term which is used when describing the process that takes place to give someone the right to deal with the deceased’s possessions.

The first step in this process is to be appointed by the Court as the person who has the right to deal with the deceased’s possessions. Before that time most institutions, banks, insurers and estate agents will not deal with you or allow access to the property/money as they cannot be sure that you are the person with the right to it. It is the ‘Grant of Probate’ issued by the Probate Court which confirms the appointment of a specific person or people who then have the right to deal with the deceased’s estate.

Up to 4 people can apply for the right to deal with the estate, although on many occasions it can make it less complicated if only one person applies. On application it will be necessary to either attend an interview at the local Probate Registry, or, if a Solicitor is acting for you, they can send in an Oath stating all the relevant facts. The current fee for applying for probate is £105 if you do it yourself, or £40 through a Solicitor.

Grant of Probate or Letters of Administration will not be granted until some or all of any Inheritance Tax due on the estate has been paid. Such tax becomes due 6 months after the end of the month in which the deceased died. You must ensure that this tax is paid, as interest will accrue on unpaid tax from the date it was due, whatever the reason for late payment.

It should be noted that there is no time limit for when probate must be applied for, howeverit is usually impossible to deal with the deceased’s property or money without it. Most banks will need to see a copy of the Grant of Probate or Letters of Administration before handing over any money. Only if the deceased left less than £5,000, or if their estate would pass automatically to a surviving joint owner, would there be no need to apply for probate.

The probate process is slightly different when the deceased leaves a will to when they don’t.

If the Deceased leaves a Will :

In such a situation the will usually names an ‘executor’. This is the person that the deceased wanted to arrange their affairs after they died. In this case, the executor(s) would apply for the grant of probate.

It is possible for there to be a Will, yet the executors named in it do not want to arrange the affairs of the deceased and apply for probate, they are incapable of doing so, or the will may just not mention an executor. In this case the beneficiaries of the residue of the Will are entitled to apply for probate.

If the Deceased does not leave a Will :

In this situation probate would be applied for by the deceased’s next of kin. There is an order of priority of relatives and the closest relative must be the one to make the application. If a more distant relative applies, the Probate Court will need to know why the closer relatives have not done so instead.

The order of priority is:

1. Husband/Wife
2. Sons or Daughters (or their sons and daughters if they died during the lifetime of the deceased)
3. Parents
4. Brother or Sisters (or their sons and daughters if they died during the lifetime of the deceased)
5. More distant relatives.

When an application is made without a Will the Court will grant ‘Letters of Administration’. This again confirms that the person(s) who applied are entitled to administer the deceased’s estate and have the authority to deal with their assets.

Where no will is left, dealing with the deceased’s estate can be much more complicated and it can take months or even years.

What the Executor or Administrator must do :

The Executor/Administrator have 4 main duties, they are:

1. To evaluate all the assets belonging to the estate of the deceased.

This would include everything owned by the deceased, including property, antiques, shares, cars, furniture. Any share of jointly owned assets must be included as well.

1. Obtain Probate.
2. Pay any Inheritance Tax due.
3. Distribute the estate.

This will be the dividing up of the remainder of the estate after tax and expenses are paid to those who are entitled according to the Will.

Who Inherits when there is no Will:

In this situation the law decides who will inherit the estate depending on the familial situation the deceased was in when they died.

If the deceased was married or in a civil partnership when they died then their spouse or civil partner is the first person entitled to the estate. This does not necessarily mean that they will receive everything. Depending on the value of the estate and which other blood relatives have survived the deceased (for example children) there are differing rules. It would be advisable to take advice from a Solicitor in this situation.

If you were not married or in a civil partnership you will not be automatically entitled to a share of the deceased’s estate. The only route available would be to make a claim within 6 months of probate having been granted under the Inheritance (Provision for Family and Dependants) Act 1975. To succeed  with such a claim it will be necessary to prove that the deceased ‘maintained’ you and provided for you in the years before he died. Again, this area can be complicated and it is best for you to seek advice from a Solicitor.

Thanks to Shmuel Portnoy, trainee solicitor at Darlingtons Solicitors, for this helpful article on probate.

Consumer sentiments

The Nationwide have released some interesting results about consumer sentiment. Perhaps the most interesting of these are :-

• 18% of those asked consider the economy will improve in the next 6 six months
• 39% asked the same question think the opposite
• 41% do not have a clear view on the economic prospects
• 58% questioned think the job market will not improve in the next 6 months
• 19% believe their disposable income will be lower,65% think it will be unchanged

The general tone is therefore still downbeat, and for understandable reasons.

How long does probate take?

Not as easy to answer as one might imagine. Probate is a grant issued by the probate registry (a division of the High Court) to executors named in their wills by Testators. Executors need  grants of probate in order to administer and distribute estates. An estate means the assets of someone who has died with or, as in the majority of cases, without a will

Obtaining a grant of Probate should be reasonably simple but there may be, and often are, complications that may lead to delay.

It is often more complicated if, like most people, you do not make a will.

Reference here to executors means executor, executrices (female) and administrators (where there is no will).

A simple Probate should take only a few weeks. In a minority of cases, though, it may take more than a year. There is even more potential for delay where the estate is to be administered by an Administrator (where there was no will).

Executors should keep in close touch with their solicitors to ensure that there is no unnecessary delay. On the other hand in most cases a solicitor who specialises in such matters will achieve a grant more quickly than an executor struggling to navigate his way through unfamiliar territory.

Executors are needed to obtain a grant of probate, if there is a will, or Administrators  for a grant of letters of administration if there isn’t. Collectively, these are known as “grants of representation”.

Not every estate requires a grant. If all the assets in the estate, minus any liabilities, are worth less than £5,000, or everything has been owned jointly, for instance by husband and wife no grant is required.

If the estate is valued in excess of £5,000, there are stocks and shares, land or property, or certain types of insurance policies, a grant is obligatory.

It is the Executor’s duty to make sure that the estate is properly administered, according to either the will or the rules of intestacy, which a solicitor will explain. The Executor must also determine if there is any inheritance tax (IHT) due, and ensure that it is paid.

IHT may well influence how long it takes to obtain Probate because IHT must be paid before the grant whilst the wherewithal to pay the IHT may be tied up in the estate.

It can often be difficult, and , therefore, time consuming, raising the cash to pay the IHT bill before probate. Executors may not sell estate assets until probate is granted. HMRC are now much stricter than previously about the value of estate assets and insist on formal valuations.

Some banks and building societies will release funds directly to the HMRC to pay IHT bills to overcome this obstacle.  Otherwise HMRC may charge interest

There can be complications if the deceased had property abroad. If a Testator owned property in France, it will be subject to the French IHT laws.

The simple question “how long does probate take?” does not permit a simple answer!

Stamp duty rise on most expensive properties sees rush to beat deadline

Whilst by all accounts the residential (and commercial) property markets remain flat at best,  this week did see a flurry of activity at the most expensive end of the market, prompted by the raise in stamp duty by 1% on properties sold for more than £1 million. Whilst many might argue that if a home can be afforded at that level, the stamp duty is a small aspect, money is money, and amounts saved are not insignificant.

In developments this week, to beat the deadline, it has been reported :-

• some £30 million of deals were completed by Savills, which said that it had seen ‘furious activity’ before the deadline approached and that the total value of sales beat the previous record from July 2007.
• Foxtons said it had around 10 central London homes that exchanged and completed yesterday.
• Approximately £200 million of sales were completed in the past week, including a £27 million property in London’s Mayfair and a £26 million home in Sloane Street.

Meanwhile, for the average homeowner, living in the “real world” average UK house price were £162,912 in March 2011, equating to 2.9% lower than a year ago.

When seeking legal advice it is poarticularly important to find solicitors who specialise in the area where you have a problem. It is all too easy to assume that all solicitors know the law and will give good advice. Like everything in life, there are good solicitors and bad ones, so it is always worth checking not only the firm, but also the individual solicitor, in terms of their reputation and knowledge. The difference between having an excellent and specialist divorce lawyer and a bad one, can be the difference between winning and losing a case.

If you have employment law issues, whether you are an employer needing contracts of employment, an employee offered a compromise agreement or perhaps with an unfair dismissal claim, please get in touch.

There are many sources of discreet advice, the most commeon of which might be categorised into the obvious areas of :-

• medical advice
• legal advice
• accountancy
• counselling

Trust is generally a very important factor in any decision to seek advice on the areas above and when a good advisor is found, it is worth hanging on to him or her, and passing on the message !