Wills

Most homeowners are concerned about the cost of aging and funding later life care. If you have worked hard to buy a property the likelihood is that you want to be able to leave your property to your children rather than see your hard-earned equity disappear in paying care home fees. Our private client solicitors provide estate planning advice. We can advise you on your Will and answer your questions on estate planning. For help with your Will and estate planning call us or complete our online form. Trusts and care home fees  Our private client solicitors come across situations where parents have spent thousands in legal fees to transfer their family home into a trust in the belief that the money spent on fees represented good value for money because the trust would protect the family home from being sold to pay care home fees and ultimately save their family hundreds of thousands of pounds. When our Will solicitors come across these situations it is frustrating. We can often spot that the money spent on putting a home into a trust was wasted and would have been better spent on a luxury cruise for the homeowners or on helping grandchildren with a deposit for their first home. If something seems to be too good to be true it often is. You should ask yourself: If the trust scheme is so good why isn’t everyone doing it? If the trust scheme works why hasn’t the government closed the loophole?  If your parents or grandparents mention a care home scheme it should raise a red flag and sound the warning bells.  If you are tempted to put your family home into a trust or want to recommend a care home money-saving scheme to your parents, our private client solicitors recommend that you take advice from a qualified estate planning lawyer before you do so.    [related_posts]  Using trust companies to avoid care home fees  With many of these care home schemes, the idea is that a family home is transferred to a trust company so the homeowner is no longer the legal owner. The former owner therefore cannot sell the property to pay for their care home fees. That principle sounds fine as the homeowner is told they are legally protected by a trust deed allowing them to live in the property rent-free. The trust company is responsible for the management of the property and ultimately will hand over the property to the beneficiaries of the trust when the homeowner has passed away. There are many problems with setting up a trust and placing a family home into it. These include: You are no longer the homeowner. If you need to raise equity with a lifetime mortgage you cannot do so The local authority may say the trust is a sham and accuse you of intentionally depriving yourself of assets to avoid payment of care home fees. The local authority can refuse to accept that the property is really outside your control and you are then at risk of an expensive and time-consuming battle with the council. When conducting means testing for care home fees the local authority could say that as you have deliberately deprived yourself of an asset the value of the family home will still be counted and you are therefore ineligible for free care home funding. Ultimately, the council could claim costs in any civil litigation if they think the trust was deliberately set up to evade care home fees and you will have spent thousands in fees in a scheme that does not work and leaves you without control of your property  You may have placed your property in trust as part of an inheritance tax reduction scheme and thought the scheme costs were modest compared to the amount your estate could save in IHT. However, in some cases, homeowners have gone into these trust schemes without being aware that their estate would be exempt from inheritance tax or would only have a nominal bill to pay because of the available inheritance tax exemptions  An unregulated and unqualified advisor recommending a trust to you may not explain the inheritance tax implications of your passing away within seven years of placing the family home into the trust Estate planning  When our estate planning solicitors sit down with you, we will talk with you about your assets, family, goals and priorities. We will give you clear and honest advice about why getting a management company to place the family home in trust may be a bad and expensive idea. A trust may be a good idea for a limited number of people. However, anyone contemplating putting property in trust should take specialist advice from a qualified estate planning solicitor to ensure that you and your family fully understand the risk and come to an informed decision. For help with your Will and estate planning call us or complete our online form.

Potentially, your ex-wife could claim against your estate. That’s why when you are separating or getting divorced you need joined-up advice from a family lawyer and a Will solicitor. In this article, the estate planning lawyers at Evolve Family Law answer your questions on what happens to your estate if you pass away leaving an ex-wife. For expert advice call our team of specialist divorce and estate planning lawyers or complete our online enquiry form.  Ex-wife's claims against an estate   An ex-wife's claims will depend, to a large extent, on whether you are divorced or not. No-fault divorce proceedings are not finalised until your final order of divorce is pronounced. If you divorced before the divorce law reform you may have received a decree absolute from the court ending your marriage. If you have not completed the divorce process you may still be married at the date of death. Therefore, your estranged wife is your legal next of kin. However, you may have made a new Will when you separated so she is no longer a beneficiary of your estate. Your ex-wife can claim your estate or a share of it even if: Your divorce has been finalised  You have a separation agreement  You have a financial court order  You are not paying your ex-wife spousal maintenance  You have remarried You have children  You have made a Will excluding your former wife  The only circumstances when an ex-wife cannot bring a claim against your estate is when the court has made a clean break financial court order preventing any further monetary claims by her or your ex-wife has remarried. Do you have a clean break financial court order? If you got divorced some years ago you may not be certain if you secured a clean break financial court order. If you are unsure, you should ask one of our specialist family lawyers to review the order for you. They can look at the technical wording and advise you.  If you do not have a financial court order our family lawyers can help you obtain a financial court order to give you peace of mind. Your Will solicitor can then prepare a bespoke Will for you, confident in the knowledge that your ex-wife cannot make a claim or the risks of her doing so are reduced. If you have a financial court order, but it is not a clean break order, our family law solicitors can advise on whether it would be sensible to ask the court to vary the order to make it a clean break order. Their advice will depend on your circumstances and those of your ex-wife. [related_posts] Does making a new Will prevent my ex-wife from making a claim on my estate?  If our Will solicitors make a new Will for you then an ex-wife could still bring a claim against your estate if there is no clean break order in place from the family court. A Will solicitor can advise on the prospects of an ex-wife successfully challenging your Will after your death. There are ways that you can minimise the risks of an estate claim or reduce the amount payable. The law on your ex-wife making a claim on your estate The law on people making a claim against your estate if you die without making a Will (called dying intestate) or die with a valid Will  is contained in the Inheritance (Provision for Family and Dependents) Act 1975. An ex-wife can claim against your estate if the intestacy rules or your Will does not make reasonable financial provision for her. Reasonable financial provision depends on her and your circumstances. For example, your former spouse may rely on your spousal maintenance that ends on your death. Alternatively, your estate may be modest and you may have dependent children from your first and second marriages who need providing for. The 1975 Act says that all the following people could bring a claim against your estate:  Your husband, wife or civil partner – this includes someone who is separated but not divorced from you  A former husband, an ex-wife or a former civil partner if there is no clean break order in place and if your ex-spouse or civil partner has not remarried A child or someone treated as a child by you   Someone who was living with you for 2 years before your death  Anyone who immediately before your death was financially dependent on you. For example, an unmarried partner    Worst case scenario, a current cohabitee, your children and an ex-wife could all be disputing who gets your estate. This level of conflict could be stopped or reduced with a Will prepared by a specialist estate planning solicitor. For expert advice call our team of specialist divorce and estate planning lawyers or complete our online enquiry form.

People are asking our estate planning solicitors about the UK rules on gifting money to family members as it is widely reported that the new Labour government may change the inheritance tax rules in the October 2024 budget. In this article, our estate planning lawyers and family solicitors outline the thought process that should go into gifting money to family members. For expert family law and estate planning advice call our team or complete our online enquiry form.  Why gift money to your family members? In 2020-21, the latest year for which data is available, families received over £2 bn of cash gifts from their loved ones. There are many reasons why money is given to family members, such as: You have more than you think you need  You don’t want your estate to pay inheritance tax or you want to reduce the IHT bill Your family needs a helping hand and could do with all or part of their inheritance now rather than waiting to inherit under your Will  All these reasons need to be aligned and work together. For example: You don’t want to maximise your inheritance tax savings but leave yourself short because you don’t have enough to live on or to meet unexpected expenditure  You don’t want your gift to a family member to end up being shared with their husband or wife as they have decided to separate or divorce  That’s why it is essential to carefully think through what you are planning to do and why and to get the timing of your gift right. That’s just as important as understanding the UK rules on gifting money to family members. How much money can you give family members? You can gift any amount of money to your family or friends during your lifetime but there are rules on whether the money will be notionally added back into your estate when you die and when your estate’s inheritance tax liability is calculated. If you gift money or assets and inheritance tax is payable on the gift when you die then the liability for the IHT may end up with the recipient of the gift – not your estate. The inheritance tax rules say that the estate pays the inheritance tax on gifts unless the deceased gave away more than £325,000 in gifts in the 7 years before their death. Once that limit has been reached the person receiving the gift pays the tax if the deceased dies within 7 years of the gift. The IHT rules can have unanticipated consequences. That’s why it is important to understand the UK rules on lifetime gifting and how they could impact your decision-making and your relatives. [related_posts] Inheritance tax rules and family gifting Not all estates are liable to pay IHT so it is important to understand your estate’s potential IHT liability before you start estate planning. If your estate is likely to have to pay inheritance tax you can currently give money or assets to the family as a tax-efficient way to give money to your children, grandchildren, other family members or friends. Gifts given less than 7 years before your death could still be subject to IHT depending on: Who you made the gift to The amount given  The date of the gift For example, if you give any amount of money or property to your husband, wife or civil partner during your life then those gifts are IHT-exempt provided your spouse or civil partner lives in the UK. For example, you can give money away that will be IHT free provided you stick to rules on the amount. Under the annual exemption rule, you can give away a total of £3,000 of money or gifts each tax year without the £3,000 being taxable when you pass away.  In addition to the £3,000 annual exemption, there is a small gift allowance of £250 per person or a gift allowance for weddings and civil partnerships. The wedding gift allowance is:  £5,000 to a child £2,500 to a grandchild or great-grandchild £1,000 to any other person There are rules on what allowances can be combined in one tax year so it is best to take legal advice.   If you make regular payments to help a family member with their living costs these can be IHT exempt provided they are normal expenditures out of income and you can: Afford the payments after meeting your usual living costs Make the gifts out of your regular monthly income rather than savings Other gifts to family members might fall within IHT liability but the recipient may benefit from IHT reliefs using the 7-year rule. The 7-year rule No IHT is payable on any gifts you give if you live for 7 years after giving them as part of the 7-year rule. If you die within 7 years of giving a gift and the gift does not fall within another IHT allowance then the amount of IHT payable at the date of your death depends on when you gave the gift. Gifts given in the 3 years before your death are taxed at the IHT tax rate of 40%. Gifts given 3 to 7 years before your death are taxed if your estate is over the threshold to pay IHT. The IHT rates taper: Time in years between gift and death Rate of inheritance tax   3 to 4 years 32% 4 to 5 years 24% 5 to 6 years 16% 6 to 7 years 8% 7 or more 0%   The IHT rules mean it's important to keep a record of gifts made, the amount or value. Why gift money to your family isn’t just about inheritance tax  Inheritance tax mitigation is not normally the main driver for gifting money to family. For example, you may want to give your family money because: They are on an NHS waiting list and you want them to have private treatment  They can't afford to buy a home and are finding it impossible to find an affordable rental property  Grandchildren are in private education and their parents can no longer afford the school fees because of cost-of-living pressures and the VAT hike Your child is getting divorced and they can't afford to buy a decent house with the money they are getting in their divorce financial settlement  There are other reasons why you may want to gift money to your family but whatever the reasons it is essential to get comprehensive estate planning and family law advice. Protecting your wealth  Protecting your wealth isn’t just about sensible IHT planning. It also involves input from a family law solicitor to make sure that your loved one is protected by a suitable relationship agreement such as a cohabitation agreement, prenuptial agreement or postnuptial agreement. Our team of specialist estate planning and family agreement solicitors can provide you with the comprehensive estate planning and family relationship agreement advice needed to safeguard your family.  For expert family law and estate planning advice call our team or complete our online enquiry form. 

At Evolve Family Law our private client solicitors, Chris Strogen and Judith Chesters, are getting inquiries about the cost of instructing a solicitor to obtain probate and to administer and distribute the estate of a loved one. Some of the inquiries we receive are from executors who have instructed other law firms to obtain probate for a fixed fee and who are disappointed to discover that the fixed fee does not cover all the work required. In this article, our probate solicitors have put together some information on probate and how solicitors charge for probate services to help executors make an informed choice about whether they need a probate solicitor, and if so, the service they require. For expert probate advice call us or complete our online form. Is probate necessary? Before we look at how much probate costs we should first ask if probate is necessary.  Not all estates require a grant of probate. Smaller estates where the deceased did not own a house and did not have a lot of savings may be able to be sorted out informally using the bank or building society’s bereavement service to close the account and transfer the funds to the beneficiary. If the only asset owned by the deceased was a house jointly owned with their spouse as joint tenants, then probate may not be necessary as the property paperwork can be sorted out with the land registry. In most cases, probate is necessary. The executors then need to decide: Do you want to use a probate solicitor? If you asking the probate solicitor to obtain the grant of probate or if you are asking them to get the grant and then distribute the estate under the terms of the Will or following intestacy rules (where there is no Will) The type of probate service fee structure you want to agree to The costs of probate and the solicitor's fees will be taken out of the estate before the estate is distributed to the beneficiaries. In some, but not all cases, the executors and the beneficiaries are the same people. Why use a probate solicitor? You do not have to use a probate solicitor but many executors prefer to do so simply because they do not have the time to sort out and deal with the paperwork involved in getting probate and distributing the estate. Many executors underestimate what is involved and how time-consuming it can be if they have not previously had to deal with the probate service or with HMRC. Other than the time factor, there are advantages of using a specialist regulated probate solicitor: The solicitor reduces the stress of sorting out the estate. This can be helpful when an executor is grieving the loss of the deceased or if there are difficult family dynamics between the executors or between the executors and the beneficiaries. A probate solicitor can give the executor and beneficiaries a realistic time estimate for obtaining the grant and distributing the estate An executor is personally liable for some things. For example, if they forget to pay a debt from the estate, do not pay the right amount of inheritance tax, or do not distribute the estate in the precise terms of the Will or under the intestacy rules. A probate solicitor has a professional insurance policy and the executor can refer any issue that crops up with the estate administration to the probate solicitor provided that the solicitor's retainer covers the issue. For example, a solicitor asked to obtain the grant of probate is not responsible for any problems in paying debts or distributing the estate if the solicitor was not asked to handle that aspect of the estate administration [related_posts] What type of probate service does an executor require? If executors decide to use a probate solicitor the next decision is to decide what the solicitor should do. This is called the scope of their instructions or retainer. Where a grant of probate is required, an executor can ask the probate solicitor to: Sort out the grant of probate alone including completing the appropriate tax form or Handle the grant of probate and some bits of the estate administration or Obtain the grant of probate and deal with all the estate administration from start to finish Option 3 is the least stressful option for the executors and may result in the beneficiaries receiving their share of the estate more quickly than if the executors dealt with all or part of the estate administration.  Option 2 works if the executors and probate solicitors know who is dealing with each aspect so there is no confusion or delay. The executors' decision will probably depend on their willingness and availability to do some of the work and to take responsibility for it. Another factor may be the cost, particularly where the executors are also the beneficiaries of the estate. Solicitor charges for probate services If the executors decide to instruct a probate solicitor the next question is whether to choose one that offers a fixed fee service or charges for their time spent in sorting out the grant of probate and/or distribution of the estate. At Evolve Family Law our probate solicitors charge on a time-spent basis rather than providing a fixed fee. That way there is no confusion over what  ‘’fixed fee’’ covers or upset that executors are paying a large fixed fee based on the value of the estate when, if the assets are relatively straightforward, the large fixed fee may not be justified and cannot be renegotiated. Our approach at Evolve Family Law avoids the issues that many executors have with ‘’complete’’ or fixed-fee services.   The executors may think that the service covers all the assets but the lawyer may say that the ‘’complete service’’ only covers the assets that pass under the Will. This may not include all the deceased’s insurance policies or pensions, leaving some of the most complex assets to be sorted out by the executors and not covered by the fixed fee. The majority of the probate work we do is carried out by solicitors Judith Chesters or Chris Strogen. They have both been qualified as solicitors for over 30 years. To make our probate service as efficient and as cost-effective as possible they are supported by legal assistants Katie Leake and Tracey Carney. We can give an estimate of the likely charges once we know a bit about the estate and what will be involved.  There is no obligation to go ahead. When our probate solicitors give a quote, we explain our likely legal fees plus VAT and the expenses the estate will need to pay. Typical expenses include: Expense Cost Probate Fees paid to the Court £300 Copies of the grant of probate £1.50 per copy Copies of the death certificate £10 per copy Property land registry information £6 Statutory advertisements for debtors under the Trustee Act Normally around £300 inclusive of VAT but the precise figure depends on the estate   Other expenses may sometimes be necessary, such as tracing fees to find a beneficiary or fees to replace a lost share certificate or to value an asset for probate. In addition to these expenses, the estate will also pay for the probate service provided by our probate solicitors on a time basis. Our time is charged by: Using the exact amount of time taken. Unlike some other law firms, we do not round the time taken up to 6 or 10-minute units of time Using the best person for the job. The executors get a named probate solicitor with over 30 years of experience but appropriate work is tasked to our legal assistants. That combination means the work is undertaken efficiently We have to add VAT to our solicitor charges. Evolve Family Law probate services Most executors want to know how much an average probate costs on a time basis.  We set out and update this information on our website cost page so executors have a rough idea of the cost before calling us. It is always worth a call to discuss potential costs as the estate may be more straightforward than a typical case. Time to get probate Solicitors can get bad press about the time taken to get probate. Admittedly some solicitors are slow (not us) but a lot of complaints about probate solicitors and estate administration stem from misunderstandings about the reasons for the delay. However efficient we are in sorting out the grant application and the paperwork, a tax return may need to be processed by HMRC and the application for probate must be processed by the probate registry. We can give you an indication of timescales. After the grant of probate is obtained it is then a question of our liaising with banks, investment funds, HMRC and others to gather in all the assets so we can do our job of finalising the estate, completing any final tax return and distributing bequests. We appreciate that delays can be frustrating but we give realistic time estimates and make sure that beneficiaries understand that any delays are not down to executor delay. Next steps  If you are an executor and need help with getting probate or estate administration our experts can help. We find that our probate fees are often more competitive than those offering a fixed-fee probate service. With us, there are no surprises with executors being told that the complete fixed fee service does not cover the work the executors envisaged it would. For expert probate advice call us or complete our online form.

If you are in an unmarried relationship or cohabiting with a partner you do need to sort some paperwork out. Whilst you and your partner may both be content to not have a marriage certificate or civil partnership certificate there are some practical things that you should do to protect your partner and family. In this article, our Will solicitors look at why it is vital to get a Will sorted out for yourself if you are entering a new cohabiting relationship or if you and your unmarried partner have settled down together without the convention of marriage or civil partnership. For expert Will advice call us or complete our online form. Why you need a Will if you are in an unmarried relationship If you are young and unmarried, why do you need a Will? If you are middle-aged, in good health, and buoyed up by your new relationship, why do you need a Will? The answer - if you are living with a partner or are in a personal relationship then your loved one has no inheritance rights or voice if you pass away. The position is different if they were your wife, husband or civil partner. Whilst a spouse or civil partner is legally your next of kin, an unmarried partner has no legal standing if you do not make a Will. That is the case if you have been living together with your partner for 3 months or 30 years. If you are unmarried and you do not have a Will, your next of kin may be your children, parents, or a sibling. Your relatives may not get on with your partner. The difficult relationship dynamics and money issues could result in your partner and your family arguing in court about who should inherit your property and assets. Unless your family who will inherit your estate under intestacy rules can reach an agreement with your cohabiting partner, a judge may have to decide if the intestacy rules (that give nothing to your unmarried partner) should be changed to leave them with reasonable financial provision in light of their circumstances. [related_posts] Why you need your partner to make a Will Looking at the situation from the other angle, it is just as important that your partner makes a Will to protect you. For example, if you have been living with them for ten years in their home. If they pass away before you and they have not made a Will then you will not be entitled to stay in the house. You also will not be entitled to a share in the equity in the property if it is sold unless you can either: Prove that you have a beneficial interest in the property because you invested money in it and are entitled to an equitable interest under property or trust law or Claim a share of the estate of your partner by challenging the estate distribution under the intestacy rules Either option involves the potential for family disputes and court proceedings. Sometimes unmarried partners do not want to leave their house or estate to their partner. That may be understandable if they have children from a previous relationship, if you and they have not been together long or if you are comfortably off and do not need a share of their estate. However, a Will could give you a right to live in the property for life if your partner has children or the Will could give you the right to stay at the property for at least 12 months after your partner’s death so you have a bit of space and time to grieve. What should go in your Will and in the Will of your unmarried partner depends on a whole range of issues, including the size of the two estates and your financial positions as well as your respective personal preferences. Alternatively, you or your partner may want to make financial provision for one another by taking out life insurance but you will then need to consider if the life insurance will pass under your Will or a nomination form. Many couples can feel overwhelmed by Will choices but that is no reason not to make a Will. Our Will solicitors can help you wade through the choices and the decisions you need to make when writing a Will to ensure that you are left with a Will that reflects your wishes and family circumstances. For expert Will and private client advice call us or complete our online form.

Will solicitor, Chris Strogen, is emphatic that you do need a Will if you are married.  In this blog, we explain why you need a Will if you are married and how our Will solicitors at Evolve Family Law can write your Will or advice on whether an existing Will needs changing.  For expert Will and estate planning advice call our team or complete our online enquiry form.   Why do you need a Will if you are married?  Whether you are married or not, if you die without a Will then your assets (called your estate) pass under statutory intestacy rules. Who gets your money and estate depends on whether you are married or in a civil partnership and whether you have children or other extended family.  The intestacy rules are inflexible and they may not reflect your wishes or be tax-efficient. Without a Will, it can be more difficult to administer your estate, especially if you own complicated assets. For example, you are a shareholder in a family business or you are self-employed as a sole trader or own a buy to let property portfolio.  In addition, if the intestacy rules do not meet your family circumstances a qualifying relative may want to challenge the estate distribution and make a claim against the estate. They can do this by alleging that the intestacy rules do not make reasonable financial provision for them.  The intestacy rules if you die without a Will and you are married  The intestacy rules if you die without a Will and you are married depend on whether you have children.   Step-children do not count as your children for this purpose as they are not biologically related to you. That’s the case even if you have always been very close to your step children. Your children from any previous relationships do count even if they are estranged from you or if at the date you pass away, they are financially independent with their own homes and families. Children includes adopted children and the descendants of your biological or adopted children.  If you do not have children your husband, wife or civil partner will inherit your entire estate.   If you do have children your husband, wife or civil partner will inherit:  The first £322,000 of your estate  All your personal possessions  Half the rest of the estate. The remaining half is divided equally between your children   The intestacy rules say that if a child has died before their parent, then the grandchild or the great grandchild of the deceased inherits in their parent’s place.  As the intestacy rules are inflexible an estate claim could be brought. For example, your husband or wife may say that they need more than £322,000 and half the rest of the estate to meet their needs. Alternatively, if you jointly own a family home with your spouse as joint tenants, your surviving husband or wife will end up owning the family home as well as getting the first £322,000 of your estate and half the remainder of the estate. Depending on the size of your estate, that may not leave much for your children to inherit.  [related_posts] Why writing a Will is a good idea whether you are married or not  Having a Will in place is always a good idea, whatever your personal circumstances.  With a Will you can:  Decide who should administer your estate and distribute the monies. The named people are called your executors. They can be family members, friends, a Will solicitor or a combination. You need at least 2 people to act as your executors  Appoint a testamentary guardian for your children. This is important if you have children under the age of 18  Make gifts of specific assets to people, such as items of jewellery or sentimental family heirlooms  Ensure that your estate is distributed tax efficiently so the estate pays less in inheritance tax. This should mean there is more money left for your beneficiaries  Leave money to a charity of your choice  Say what your preferences are about funeral arrangements  Place money in a trust. This can be helpful where, for example, you have been married previously and have children from different relationships. You may want your current spouse to be able to stay at the family home and have enough to live very comfortably but you may want your estate left in trust so that on your spouse’s death your remaining estate passes to your other trust beneficiaries, such as your children. If money is left outright to your spouse in your Will or under intestacy rules, then on the death of your spouse your monies will form part of their estate and be distributed in accordance with their Will or under intestacy rules. If your spouse remarries then the monies inherited from you may pass to their new husband or wife rather than to your children or grandchildren or to your preferred charity  There are many other reasons why talking to a Will solicitor is a good idea. For example:  To understand what assets form part of your estate. If the family home is owned as joint tenants, it passes straight to the surviving owner and not by your Will. If the house is owned as tenants in common your share of the property passes by your Will or under the intestacy rules. Other assets, such as a pension or life insurance, may not pass by your Will but by nominations. It all depends on how the policy is written  It may be tax efficient to make lifetime gifts as part of your estate planning and IHT strategy  You may want to put in place a Lasting Power of Attorney for yourself and your spouse  You may want to check if your former spouse has a potential claim against your estate and discuss what you can do to protect your current husband or wife or your children from such an estate claim   For expert Will and estate planning advice call our team or complete our online enquiry form.

Intestacy or dying intestate means a person has passed away without a valid Will. The person’s estate is therefore distributed under the intestacy rules.  In this article, Will and probate solicitor, Chris Strogen, looks at what intestacy might mean for you or your family.  If you need help with making a Will or with probate and estate administration call our team or complete our online enquiry form.   Passing away without a Will   If you die without a Will your family will not have the guidance you could have given in a Will. A Will does not just say who should inherit your estate. A Will can also:  1. Appoint executors to administer your estate In a Will, you can choose the best person for the job of executor. That might be your husband or wife, a friend, an adult child, your Will solicitor or a combination of these people. You may know that asking your spouse and your children to work together as executors will not work in your family circumstances and in your Will you can appoint your executors with care  2.Set out when your chosen beneficiaries will inherit You may not want your children to come into their inheritance until they are 21, 25 or 30 so they are a bit more mature when they receive a life changing amount of money  3.Protect your minor children by appointing a testamentary guardian in your Will   4.Ringfence assets in a trust so your trustees can distribute the income or capital in your estate to the discretionary trust beneficiaries after considering their circumstances and making distributions in a tax-efficient manner. A trust can be very helpful in a blended family or where there are concerns that if a gift is left outright to a family member it will be wasted or end up being used to fund the beneficiary’s divorce settlement   5.Make small bequests so friends or grandchildren are not forgotten as they are left an item of sentimental value or a gift of money  A Will is a very powerful document as it sets out the testator’s wishes. All of us should have a Will to protect our loved ones. That is particularly important if your estate would not pass following your preferences under the intestacy rules. For example, a much-loved unmarried partner of 20 years inherits nothing under the intestacy rules. For example, depending on the size of your estate, a spouse you married 6 months before your death may inherit everything leaving nothing to your 4 children from your first marriage.  The rules of intestacy explained  If there is no Will your estate passes under the rules of intestacy. There is no discretion – the rules apply whether or not they are what you would have wanted to happen to your estate.  As the intestacy rules are rigid, they can create family upset. For example, if your cohabitee will not receive anything or if the family heirloom you verbally promised to your grandson is inherited by your new spouse.  The intestacy rules say:   If the person who died was married or in a civil partnership and had no children, all their estate goes to their husband, wife or civil partner  If the person who died was married or in a civil relationship and has children, the first £322,000 of their estate goes to their spouse or civil partner, together with all the deceased’s personal possessions. If the estate is worth more than  £322,000 then the spouse or civil partner gets half the balance and the deceased’s children split the remaining half between them  If the person who died was not married or in a civil partnership, but has children, the estate goes to the children. If there are no biological or adopted children, the estate goes to the parents and the intestacy rules continue with a list of more distant relatives in order of preference. [related_posts] If the intestacy rules create unfairness  If the intestacy rules create unfairness, then there is the potential to sort things out by the beneficiaries under the intestacy rules agreeing to forgo their inheritance or share their inheritance. That does not always happen as an unmarried partner of 20 years may not get on with the deceased’s adult child from a previous relationship or with the deceased’s parents so the family is unable to negotiate a compromise on how to share the estate.    If the family cannot sort out the difficulties created by the lack of Will and the intestacy rules then a disappointed unmarried partner or other relative could make a court application to claim a share of the estate because the intestacy rules did not make reasonable financial provision for them. The court must look at each case on its facts. For example, if the unmarried partner is a successful business owner with a good income and a property owner, the court may decide that they do not need a share of the estate. The ruling might be different if the unmarried partner was living on a state pension and the deceased’s adult children were all homeowners and doing well for themselves.  The problem with challenging the intestacy rules is that it can create ill will within a family and it costs both time and money. It is a lot simpler and cheaper to make a Will.    Avoiding intestacy  Avoiding intestacy is easy. All you must do is make sure that you and your loved ones have a Will. It is also important to review your Will and make sure it is up to date. If your Will is not up to date you may end up with a partial intestacy. For example, if you leave half your estate to your brother but your brother passes away before you do so. A partial intestacy can be avoided by updating your Will to name a new beneficiary. In any new Will, it is a good idea to include a ‘what if’ clause. For example, you leave half your estate to your nephew but if he passes away before you then the legacy is shared between his children.  Our solicitors can help you with all your Will and estate administration needs, including if you are unsure about what to do if a relative has passed away without leaving a Will.    If you need help with making a Will or with probate and estate administration call our team or complete our online enquiry form.  

Many people assume that once they get their final order of divorce their ex-spouse has no further claims against them or their estate. Family lawyers and Will solicitors say that is not correct.  In this article, our lawyers look at when an ex-wife can make a claim against an estate and what you can do about it to protect your estate and your beneficiaries.  For expert family law and Will advice call our team or complete our online enquiry form.   Financial claims after a separation or divorce     When you separate or divorce your ex-partner their financial claims remain intact until you reach an enforceable agreement or the court makes a financial court order.  Even if you reach an agreement or the court makes a financial court order your ex-spouse may still retain all or some of their financial claims. That is why it is essential to use a family law solicitor to help you negotiate a financial settlement or to draw up your financial court order. It is equally important that your solicitor explains what the wording of the order means.  The only way you can achieve finality with no risk of further financial claims is if the court makes a clean break financial court order.  What is a clean break financial order?    A clean break financial court order can be made by agreement ( you and your ex-spouse ask a family judge to convert your agreement into a binding court order) or after a contested court hearing. Clean break orders can be confusing as there are 2 types:  Immediate – as soon as the court order is made your ex-spouse cannot make any further claims or they cannot do so once the order is implemented. For example, an order will be implemented after the sale of a family home, the agreed division of equity, and the pronouncement of your final order of divorce   Deferred – the clean break comes into effect when an event occurs. For example, if you are ordered to pay time-limited spousal maintenance the clean break may come into force when the spousal maintenance payments end. A deferred clean break can be confusing as the court order may allow the person receiving the spousal maintenance to apply to the court to extend the length of the spousal maintenance order or the person receiving the spousal maintenance may ask the court to make a lump sum payment or pension sharing order in their favour instead of them continuing to receive ongoing spousal maintenance. Some court orders do not allow the person receiving spousal maintenance to apply to court to extend the maintenance term    As clean breaks are complicated it is best to take legal advice on your financial settlement to see if you are likely to be able to achieve one and whether it is in your interests to do so. For example, if your ex-wife is in a new relationship and you think she will remarry you may not want to give your ex-wife more money to buy off her spousal maintenance claims. Why? Spousal maintenance automatically stops on re-marriage and it cannot be revived if the ex-wife’s second marriage breaks down. However, if an ex-wife cohabits rather than remarries you will only achieve a clean break if the spousal maintenance order provides for this.  Your priorities and goals    It is important that your family law solicitor takes their time to understand your priorities and goals. Some people are adamant that they want a clean break. There may be reasons for this, such as a bad experience in a first divorce, the future anticipated sale of a business, or wanting to protect your children from your ex-wife making a claim against your estate. Other people may be more sanguine about negotiating a clean break order. For example, if you do not have children and are not worried if your ex-wife tries to make a claim against your estate as you are leaving most of your money and property to charity and know that your executors can fight the claims in the unlikely event that your ex-wife brings a claim against your estate.  [related_posts] Can your ex-wife make a claim against your estate?  Whether your ex-wife can make a claim against your estate will depend on whether you have a financial court order, its precise terms, and whether your ex-wife has remarried.  If you are concerned that your ex-wife may have a claim against your estate under the Inheritance Act then talk to a Will solicitor.  She will still have a potential claim even if you make a Will and cut her out. That is because under the Inheritance (Provision for Family and Dependents) Act 1975 anyone who falls into one of these categories of people has a potential claim against your estate:  A wife, husband, or civil partner  A former wife, husband, or civil partner (provided they have not remarried)  A child or someone treated as a child by the deceased   Someone who was living with the deceased for the 2 years before the deceased’s death  Anyone who immediately before the deceased’s death was financially dependent on them   A private client solicitor can provide you with estate planning advice and draw up a Will that reduces the risk of your ex-wife bringing a 1975 Act claim. They can also work with a specialist family law solicitor so you can explore whether it is worth asking the court to make your existing financial court order into a clean break order. This may be possible if, for example, the court left spousal maintenance open-ended because your ex-wife might need spousal maintenance in the future but she has been in a long-term cohabiting relationship so you think the time is right to secure a clean break.  At Evolve Family Law our family law solicitors work closely with our private client and Will lawyers and recommend that when you separate you think about making a Will or changing the terms of your existing Will.    For expert family law and Will advice call our team or complete our online enquiry form.