Dealing with Power of Attorney, Wills and Probate
The brief of letting agents is wide reaching when dealing with property to be let, property with tenants in situe, and circumstances that change in relation to property owners and tenants. Situations arise that can be challenging, sensitive and require Due Diligence.
Power of Attorney
When a person presents themselves as the Power of Attorney on behalf of a client landlord or tenant, it is important to follow a strict process to ascertain that a Power of Attorney is in fact in place.
Figures show that since 2014/15, the numbers of Lasting Powers of Attorney (LPAs) registered with the Office of the Public Guardian (OPG) have more than doubled and the reasons for this range from an increased need for protection due to changes in personal circumstance to illness or lack of capacity.
There are 2 types of LPA - Health and Welfare and Property and Financial Affairs, therefore when, for example, the representative of a landlord states that they have Power of Attorney, it would definitely be related to Property and Financial Affairs. Therefore, this will mean that the representative will have the ability to make decisions about property and money which may include paying bills, giving consent to let.
However, it is crucial that the representative provides the relevant document which will state they have Power of Attorney and the type of LPA granted. A copy of the document must be made and the original will be returned to the representative. It is also important to take copies of the representatives photo ID.
The Power of Attorney automatically ends if:
Attorney or donor dies
Attorney or donor becomes bankrupt (LPA)
Marriage or civil partnership between the donor and the attorney is dissolved or annulled
The attorney lacks the mental capacity to make decisions
The Court of Protection can cancel an LPA if an attorney is not acting in the persons best interests.
When a Landlord or Tenant Passes Away
Dealing with the passing of a tenant or landlord can be quite daunting and often the enormity of this type of situation can divert one’s attention away from ensuring the correct questions are asked.
Whilst it is difficult to ask for information at a difficult time, one must request the Death Certificate, a Copy of the Will, the details of the solicitors (where applicable) and the names and photo ID of the Executors. Due Diligence is paramount to ensure that those managing the deceased’s estate are correctly identified. An executor is someone who is named in the Will and will be responsible for dealing with the estate of the deceased.
Probate
It is the executors that may have to apply for probate. The Grant of Probate is a legal document which gives authority to share out the estate of the deceased according to their wishes and instructions found in the Will. Many executors will act without the assistance of a solicitor, however, if the estate of the deceased is complicated, they are likely to seek legal advice.
Probate applications are currently taking up to 16 weeks to process, and that paper applications are taking longer than online applications. However, these wait times often do not reflect the actual wait times experienced by professionals obtaining a Grant.
After probate is granted, the Personal Representatives named on the Grant can begin the process of dealing with the estate. This may include closing a bank account or selling or transferring property. The Grant of Probate allows the Personal Representatives to legally distribute what is named to the beneficiaries in the Will.