April 26, 2018
It is generally assumed that when you make a Will you can leave your estate to whomever you wish.
Here, our Wills specialist, Carolyn Monaghan explained why it is not always that straightforward.
It is generally assumed that when you make a Will you can leave your estate to whomever you wish.
Here, our Wills specialist, Carolyn Monaghan explained why it is not always that straightforward.
Family Law expert, Helen Starmer discusses some myths surrounding matrimonial issues
Being appointed as an executor in a Will carries responsibilities.
Wills & Probate specialist, Carolyn Monghan, looks at the potential pitfalls faced by executors when the estate is insolvent.
When employment ends, for example through redundancy, often the employer will ask the employee to sign a 'Settlement Agreement' to bring an end to the contract.
Our Business & Commercial Law specialist, Kiran Virdee explains what these are.
Kiran Virdee explains the importance of getting your business terms and conditions right.
Now that more of us are living longer, the prospect of needing to go into a care home looms larger in most of our minds. Most of us feel that we have worked hard to have something to leave for the children and we don’t want it all to go on paying for years and years of care. But there are a lot of myths surrounding paying for care fees, and it’s worth putting these concerns into perspective.
Currently there are about 291,000 people living in care homes, representing about 3.2% of over-65s. This percentage has been roughly stable since 2001. This shows that the vast majority of us will never go into a care home.
If we do, many people fear that the local authority will immediately take the house to pay for it. However, this is not the case. Firstly, any income you have – state pension, occupational pension, state benefits – will first be used to fund your care. If there is a shortfall, a financial assessment will be made, looking at how much capital the person going into care has. If the house is needed for the person’s spouse to live in, it will not count as part of this assessment, and there are other assets that may be disregarded too. If the person is assessed as having more than £23,250 in capital, the Local Authority will not contribute to care fees, and will leave it up to the person to fund their own care. If the person has capital between £14,250 and £23,250, then the Local Authority will make a contribution to the fees.
Many people think that the only solution to avoid the sale of the house is to give it to the children. But this has its own drawbacks – your children may get divorced, or go bankrupt, giving third parties a right to a share of your home. In addition, the Local Authority can ignore a gift if they can show that it was made only or mainly to avoid care fees, and treat you as still owning the property.
There are ways for joint owners of a house to use a trust in their wills to protect at least half of the house for the children. Every person’s circumstances are different, and it is always wise to take legal and/or financial advice when making plans for your future.
Please call me if you would like to make an appointment for advice on any aspect of this article.
You may be thinking that after paying out for all those children essentials like toys, clothes and birthday parties there would be nothing left to leave in your Will. But remember - a Will doesn’t just cover your financial wishes.
It’s something we don’t like to think about, but if you don’t make a Will at all and both you and your partner die, any member of your family can apply for parental responsibility for your children – imagine Great Auntie Rose, who is lovely but no match for your boisterous little terrors, or what if both sets of grandparents wanted responsibility? This could set off world war three! If you make a will with provision for the children, you can make your own wishes clear to your family and make sure your children have the most suitable guardians.
If there is any money, the law says that if you have no spouse, or your spouse has died before you, the money will be divided equally between your children and will be held in trust until each child reaches the age of 18. You may prefer that the children have to wait until they are 21 – or maybe 30 – before they can take control of the money.
For some families, it may be fairer not to divide the money equally. For example, if you have a disabled child who may have greater financial needs, you might wish to give that child a larger inheritance.
There might be a large age gap, say, one child is 10 and the other 20. Here, you may wish to leave more to the 10-year-old to help the guardian with bringing a young child up – you can make provision in the Will that this changes to an equal share when the youngest reaches 18.
If your family is a complex one, where you each have children from a first marriage and you also have children together, the need to make a Will is even more important. If you have raised your blended family together for some years, you probably want to keep them together if you both die, but the former spouses’ families may have other ideas. Also your assets may not pass equally to the children - step-children are not entitled to any assets if a step-parent dies without making a Will, so who gets what will depend on the accident of who dies first.
If you make a Will, you can avoid all of these problems and make sure that your children are secure.
Please do call me to arrange an appointment if you are thinking of making your first Will or updating an existing one.
The way you own your home could have implications you might not be aware of.
It is important to understand how this could affect you, particularly in relation to your inheritance planning.
When two or more people own property together, there are two ways they can hold the property:
Beneficial joint tenants - if one of the owners dies, the survivor will own the whole property.
Tenants in common - each owner owns a share of the property, which can then pass to whoever they wish under the terms of their will.
As with most things, there can be pros and cons to each method and your own circumstances can often dictate which is most advantageous for you.
It is possible to change from one method to the other. If you hold a property as beneficial joint tenants, you could make a declaration (known as severing the tenancy) to convert your ownership into tenants in common.
If the ownership is by way of tenants in common you could transfer to beneficial joint tenants (so long as all the owners agree) by making a Declaration of Trust.
Examples of how the different methods can affect you can include:
If a couple separate, one may decide to sever the joint tenancy so as to protect their share of the property and ensure it passes under the terms of their will, rather than automatically to the other joint owner.
A married couple may choose to hold the property as tenants in common for various reasons:
Tax – you don’t have to own equal shares in your property, and there may be tax advantages in holding the property in unequal shares.
Janet, a company director, pays 45% tax. John is a full-time house-husband with no income from employment. They own a second home which they rent out at £1,000 per month. Whilst they own this house as beneficial joint tenants, they are each entitled to half of any rental income. John pays 20% tax on his share (£100 per month), but Janet has to pay 45% on hers (£225 per month).
Securing the children’s inheritance - this can be threatened either by care home fees, or perhaps by the remarriage of a surviving partner who is not the parent of the children. If the home is owned as tenants in common, each partner can make a will which leaves their half share in trust on whatever terms they wish.
Mick and Joan own their home as tenants in common. Theirs is a second marriage, and each has children from their first marriage. They want to make sure that their own children get their share of the house. They have made wills which, in the event of the death of one of them, leaves their share of the house in trust for their children, but with a right for the surviving spouse to live in the house for the rest of their life.
If you would like further advice on any aspect of this article, please do call me to arrange an appointment.
I thought I would use our blog to introduce myself as Pudsey Legal's new Private Client specialist lawyer.
I have many years’ experience of advising clients on “getting their affairs in order”. This may mean making a Lasting Power of Attorney, a Will, or perhaps setting up a trust to protect the family home or a disabled relative. I am a Fellow of the Chartered Institute of Legal Executives and a member of the Society of Trust and Estate Practitioners.
To start things off I will explain why it is important to consider making a Will.
What happens if I don’t make a will? .
If you die without having made a Will, you are said to have died “intestate”, and as you have not made clear how you would like your estate distributed, there are legal rules which must be followed to distribute your estate.
The law says that if you are married or in a civil partnership with your partner, and also have children, then your partner will take the first £250,000 of your estate, plus half of the remainder, while the children will inherit the other half of the remainder.
If you have no partner, your children will take everything equally between them.
If you have no partner or children, then the next nearest relative or relatives will get everything, in the following order of priority:
If you have none of these relatives, then everything will pass to the Crown.
These days, there is really no such thing as a typical family. A couple may be married, in a civil partnership or just living together. They may have children from previous relationships, shared children, adopted children, or any combination.
Take Fred and Wilma – they have lived together for 15 years. They have no children together, but Wilma has a daughter from a previous relationship, whom Fred has brought up since she was 2 years old. When Fred dies, his entire estate passes to his brother Bill, who has not spoken to Fred for 20 years.
Barney and Betty, on the other hand, are married. Barney has four children from his previous relationship, and Betty has one child from hers. When Barney dies, there is only £200,000 in his estate and Betty inherits it all. Sadly, Betty dies just 6 weeks later, without having made a Will. Her daughter inherits everything.
The laws of intestacy can have some very unfair consequences. Making a Will can avoid a lot of family trauma.
Even if you have already made a Will, it is important to think about whether it is up to date. Family circumstances change constantly and even a small change could have a dramatic effect on an out of date Will.
If you do want any advice on any of the points raised in this blog, please do call to make an appointment to see me.
As we all know, moving home can be a stressful experience. If you’re putting your house on the market, it’s natural to want to agree a sale as quickly as possible (and for the best price.)
This is where the old adage ‘Fail to prepare – prepare to fail’ comes to mind. Why? Because it also applies to selling your home - presentation is key if you want to increase your chances of that quick sale.
It’s not just about giving your home ‘kerb appeal.’ It’s about making your home somewhere potential buyers can easily visualise living in themselves.
This is no ‘one size fits all’ solution to this, people have different views, but there are a few simple rules we can follow to improve our chances of that quick sale:
...... and finally, smile - be friendly and cheerful. Creating a bond with the viewer might just tip the balance.
Good luck and do give me a call for a quote when you’ve agreed that sale. We'll do our best to make sure the process goes as smoothly as possible!
As many people will know, legal aid has been abolished for many family law matters and this, in turn, has led to a steep rise in ‘Litigants in Person - in other words people representing themselves in the family law courts.
A couple of recent case have caught my eye and I thought I would share these with you as, perhaps, they do highlight the need for legal advice.
The first involved a couple who had been married for over 20 years and had substantial assets. Following the divorce, the husband was ordered to pay the wife a considerable sum.
The husband now sought to alter the terms of a divorce financial settlement on the basis that his ex-wife was now living with another man (it is interesting to note that he represented himself at the hearing.)
The husband argued that that his ex-wife and new partner are effectively living as ‘husband and wife’ and, therefore, he should pay a lesser sum - in effect reducing his support for her.
The wife argued that she was anxious to remain financially independent and should not have to rely on her new partner.
The Court agreed with her, ruling that the new relationship did not negate the husband’s legal obligation to his former wife.
The second involved an ex-husband who has won the right from the Court of Appeal to challenge the validity of his ex-mother-in-law’s Will.
The case centred on the divorce settlement between the parties which included a provision that if the wife inherited more than £100,000 from her mother, any sum over the £100,000 be split equally between the husband and wife.
Following the mother’s death, the Will left £100,000 to the wife with the remainder (approx. £150,000) going to her grandchildren.
The husband launched a challenge to this, including alleging the Will had been forged in an attempt to get around the divorce settlement.
Initially he lost as he was found not to have sufficient interest in the estate to bring a claim.
On appeal, the wife argued that only those with the right to administer an estate could challenge a Will. As such, the husband was a ‘stranger to the estate’ as he did not have this right.
The Court of Appeal rejected the wife’s argument, commenting ‘justice in the general sense requires the husband to bring a probate claim’ and that ‘he is not a mere busybody. He has a real interest in challenging the validity of the Will.’
The matter will now be heard as a formal challenge and it will be interesting to see the outcome.
However, the ruling does potentially open the doors a little further for those who previously had no right to challenge Wills in the future.
If you would like advice regarding any of the issues in this article, do get in touch to make an appointment.
Regular readers of our blog might recall, I wrote last year about how Pre-Nuptial Agreements are now becoming more popular for couples planning their wedding.
In general terms, a Pre-Nup agreement sets out the assets which you already owned and which your spouse would have no claim on should you divorce. These assets may include property, cash or other financial resources, an anticipated inheritance or even a pet – the list is endless!
I thought I would revisit this topic in light of a recent survey which suggests that one in ten married people in the UK wish they’d had a Pre-Nup in place before they were married.
That might not sound much until you consider that, according to statistics, there were just over 300,000 marriages in the UK in 2014.
Tying the two statistics together might then suggest that 30,000 of those marriages have one party who wishes they had a Pre-Nup in place!
Whilst the law does not currently recognise prenuptial agreements as legally binding, the Law Commission (the body tasked with keeping laws under review) has recommended that this be changed, though, until this happens, there is no absolute guarantee they will be upheld if challenged.
However, the Supreme Court ruling in the case of Radmacher v Granatino significantly strengthened the weight of Pre-Nups, saying they were likely to be upheld if they were not considered unfair.
Agreements will be examined on a case-by-case basis with the courts more likely to take them into account – seeing it as evidence of the parties’ intentions - when ordering a division of assets on divorce, unless there is good reason to disregard it
So, a Pre-Nup agreement might help you avoid bitter disputes and high legal costs. Whilst the idea of arranging one may sound ‘unromantic’, pre-nups can be a useful way of actually reducing the tension when couples split by limiting the issues to argue over.
If you are considering a pre-nup, or would like advice on whether to make one, please call me to arrange an appointment.
As regular readers of our blog will know, I specialise in Wills, Probate and Lasting Powers of Attorney (LPA) and have written a number of articles outlining the benefits of preparing for later life through Wills and LPA’s
I thought it was now about time I touched upon a subject we don’t like to think about - what happens to someone’s estate when they die, in other words, the legal area of Probate.
Specialising in this field, it seems death is something I encounter on an almost daily basis. Although a very natural part of the cycle of life, it is always extremely hard when you lose someone close to you. It is only natural for those left behind to feel lost. We all have own way of coping with death and, quite frankly, we don’t know how well we will cope until it has happened to us.
The last thing someone in these circumstances wants to be bothered with is dealing with the administration of the estate of the person who’s died.
Here’s a few ways how Pudsey Legal can help should you find yourself in this unenviable position.
We can obtain a Grant of Representation (probate) for you (this is the legal document giving the Executor or Administrator (if no Will has been left) the power to administer the estate.) The cost of doing this is a lot more affordable that you might think. Our fixed charges start at £499 plus VAT and disbursements, and can include a HOME VISIT. Probate can normally be obtained within 3 to 4 weeks of you instructing us.
We can also handle the full administration of the estate for you (which involves the valuation and distribution of the estate) and, in most cases, we will be able to provide you with a fixed price at the outset of the matter, for your own peace of mind.
We can also advise on Inheritance Tax mitigation, which is often overlooked by people. For example, I have had many older clients who have inherited money which they didn’t require and wanted to pass directly to their children. This can be done in a tax efficient way by a Deed of Variation.
A few points to note:
We live in an age where people are extremely price conscious and are increasingly able to cut out the professional in favour of a DIY job. My adage has always been to leave things to the experts. Would I tile my bathroom or change the alternator on my car? No way!
I have seen many clients who have tried to do legal work themselves and it has all too often proved to be a false economy. Mistakes had been made which have cost them time and money which can far outweighed the initial saving in legal fees.
I hope you’ve found this article useful so, if you feel I could help at such difficult times, please do give me a call.
February is often described as the ‘Month of Love’ with our celebrating St. Valentine’s Day on the 14th.
There are a number of historical references surrounding St Valentine. My favourite, and perhaps the one linking the saint with romance, tells us that the roman emperor Claudius II concluded that single men made better soldiers than men with wives, so outlawed marriage! However, Valentine opposed this and continued to perform secret marriages for young lovers.
There are many other stories, yet I often find it somewhat ironic that the Month of Love immediately follows the month when Divorce rates traditionally spike.
There can be many reasons for this. Perhaps it’s because, couples who are already showing cracks in their relationship hold it together over Christmas, often for the sake of their children, but then the stresses of everyday life catch up early in the New Year and they reach breaking point.
Statistics from the National Family Mediation service showed calls to their helplines in January increased by some 26% over last year. They say that “January is ‘Divorce Month’ and is no media myth, but a proven phenomenon.”
If you have found yourself in this unfortunate situation and you feel you have reached the point where your relationship has irretrievably broken down then it is important to seek advice on your legal position and, hopefully, achieve a conclusion as amicably as possible.
I am a member of the Law Society’s panel of accredited family law solicitors as well as being a member of Resolution, a national organisation of family lawyers committed to non-confrontational divorce, separation and other family problems and I am here to help guide you through the legal maze at what can be a very emotional stage of your life
We can also help with family Mediation through our collaboration with Allison Family Mediation Services.
Also, remember that we try to fix our prices on as many of our services as we can to give you peace of mind that the price you are quoted at the beginning is the price you will pay at the end.
Do give me a call if you would like to arrange an appointment for initial advice.
The start of a new year is often the time when many of us make resolutions to change our lives for the better - whether we try to give up sweets and chocolate or exercise more, we often forget them by February!
If this applies to you, there is one New Year resolution which can make a real difference and might be easier (and cheaper) than you think.
Tidying up your legal affairs might not be the first thing which springs to mind when planning your New Year resolutions, however, if you feel it’s high time you got around to sorting out things you have been putting off there are lots of ways we can help:
It’s not as daunting or expensive as you might think. Our friendly and helpful lawyers are on hand to give you clear advice and reassurance just when you need it.
Also, don’t forget, we offer fixed fees across many of our range of services to give you peace of mind in knowing that the price you're quoted at the start will be the price you pay at the end with no nasty surprises.
So, whilst sorting out your legal affairs might be something you always put off until tomorrow, the New Year is an ideal time to include this on your resolutions list.
We’re only a phone call away and the kettle’s always on!