Ask the Experts March 2012

Q: My father died many years ago and my mother dealt with all the financial matters. My mother has recently passed away, and I have found out that I am the executor of her will. What does this mean?

A: Karen Witter – partner in our Private Client deaprtment says…  When somebody dies, there are many things to sort out, and it can be a very distressing and confusing time.  Firstly, you will need to obtain the death certificate. In addition, there will be funeral arrangements to make. Sometimes the person who  has died may have made specific requests in his or her will about special funeral wishes, so it can be a good idea to check the copy of the will before you make the funeral arrangements.

Being an executor means that your mum wanted you to be the person to sort out her financial affairs, and make sure that the wishes in her will were carried out. You will need to get together as much information as you can about her bank accounts, house, car, life insurance etc. Depending on the value and nature of her assets, this can sometimes be complicated but there are people who can help you.

You then need to check whether a grant of probate is required, and a soliciotor will usually be able to tell you this based on what you know about the assets.  The assets will need to be collected in, and any debts she may have had will need to be paid. After that, you will be the person who distributes the left over funds to the people named in the will.

 

Q: One of my employees has booked a holiday at short notice without getting the necessary annual leave authorised in advance. We have a huge order to process that week and I cannot do without him. Am I ok to say no to his holiday request?

A: Claire Smith – associate solicitor in the Commercial Litigation department says… This is a difficult but quite common problem. In the absence of any provisions in your contract or handbook, the Working Time Regulations state that employees should give notice of at least twice the period that they want off, i.e. if he wants five days off he must notify you 10 days before the holiday is due to commence. An employer may refuse a request by serving a ‘counter-notice’ given at least as many days before as the period of leave that is being requested. Most employers have clear rules in their contract or handbook requiring employees to give a minimum period of notice and confirming that authorisation must be obtained in advance. If you do then you are on stronger grounds to object.

Your employee is likely to be aggrieved if he has to cancel a booked holiday but if you cannot accommodate the absence in another way, you have a genuine need for him to be there, and you follow the relevant procedures you should be fairly safe in rejecting it. If you decide to allow it you should make it clear to him that he must get authorisation first in the future, and bear in mind that you might be setting a precedent for other members of staff.

 

Q: I am a company director and I’m considering putting the business into administration and then immediately purchasing its business and assets under a pre-pack transaction. What are the legal issues for me and my co-directors?

A: Sonio Singh – partner in the Corporate Department says… Pre-pack purchases by the management team of a company are usually advantageous in ensuring a speedy transfer of a business and can minimise the loss of supplier/customer confidence often caused by insolvency proceedings. Pre-packs can also save jobs. However, given the potential abuses of pre-packs and their increasing regulation, I would recommend that you consider a number of issues. Firstly, directors must consider their statutory duties under the Companies Act 2006. The directors are also required to provide detailed information to the Administrator regarding the business of the company so a valid and proper assessment of its business and assets can be made. The directors must ascertain whether a pre-pack is appropriate by considering the creditors of the company and it is extremely important to conduct as much informal due diligence as possible.

The management team should also ensure that (as far as possible) all wages of the employees are paid up to date and all consultations under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) have taken place. As well as claims for lack of consultation, employees who are dismissed in contemplation of a pre-pack can claim damages from the purchasing company.

There are several other key factors to consider so always consult a commercial lawyer before proceeding.

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