Wills

Will and inheritance dispute solicitors at Evolve Family Law have substantial experience in writing wills, estate planning, inheritance claims and advising on probate. Their expertise enables the team to provide the specialist advice that Will-makers need on how to prevent someone from contesting a Will.   For expert Will writing advice, call our team of specialist Will lawyers or complete our online enquiry form.     Can a Will be contested? Many of us hope we have protected our loved ones after our death by making a Will. However, making a Will does not stop someone from trying to contest its provisions after your death. Even if a Will-maker signs a Will setting out where they want their property and money (referred to as their estate) to go, their express instructions in their Will can be challenged by either: Alleging the Will isn’t valid. Claiming the Will doesn’t make reasonable financial provision for a person who has a right to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. The 1975 Act applies to estates in England and Wales.   Stopping your Will from being contested on grounds of validity If you get your Will prepared by a specialist Will solicitor, it is less likely to face a successful validity challenge because a private client lawyer is highly experienced in Will writing and execution. A Will challenger can claim that a Will is invalid for a variety of reasons: The Will was not witnessed properly in accordance with the law on witnessing requirements. The Will-maker was coerced or unduly influenced into making the Will. The Will-maker lacked testamentary capacity to make the Will. For example, because of their age, dementia or other health condition affected their ability to make decisions or because they were receiving hospital or hospice care and on strong medication when they signed their Will. It is part of the job of a Will solicitor to try to ensure that a Will is valid. They will therefore try to minimise the risk of a Will being contested on the grounds of validity by taking precautions. These include: Giving clear advice on how the Will needs to be signed and witnessed. Ensuring that the Will-maker’s instructions are taken, rather than relying purely on a family member or friend to pass on the Will-maker’s instructions as to what should be included in the Will. If the Will-maker wants to make a completely different Will to their previous Will or an unusual Will (for example, leaving their entire estate to someone they have just met when the Will-maker has a close and supportive family) the Will lawyer can explain the potential for the Will to be challenged and can advise the Will-maker to write a letter to accompany the Will to explain the decision behind the new Will. Alternatively, an explanation can be included in a Will. For example, that provision in the Will has not been made for a spouse because of a separation. It is essential in those circumstances that family law advice is also taken, as a spouse can still make a claim against the estate unless a clean break financial court order is obtained. Checking to see if there are any health or other issues that might enable someone to question whether the Will-maker lacked testamentary capacity when they signed their Will. If there are any question marks, it is sensible to be cautious and obtain a medical certificate to say that the Will-maker had the capacity to sign their Will. Although someone can challenge testamentary capacity even where there is a certificate, the claim is far less likely to be successful if the point was addressed when the Will was made.   You might also be interested in [related_posts]   Reducing the risk that your Will can be challenged because it doesn’t leave reasonable financial provision The best way that you can reduce the risk of your Will being challenged because it doesn’t leave reasonable financial provision to a potential claimant is to be honest with your Will solicitor. Sometimes people are embarrassed to be upfront about their personal or financial circumstances. For example: Not saying that they have a child from a previous relationship because of the child’s age and other family circumstances, or Not mentioning a new partner as they don’t want family members to know about their partner, or Not revealing that they have not obtained a divorce from a separated spouse, or Not explaining the vulnerability of family members or their financial dependence.   Whatever you tell your Will solicitor is confidential. The lawyer cannot give detailed advice without all the necessary information about your family and potential claimants. In addition, your Will is private. During your life, the contents of your Will do not have to be disclosed to your family. However, explaining your Will to your family may help them understand why it is fair. After a Will-maker has passed away and probate is granted, the Will is accessible as it becomes a public record. A Will solicitor can explain the options (such as the creation of a trust and writing a letter of wishes if the testator wants to keep things private after their death). A lawyer specialising in Wills can advise on the potential reasonable financial provision claims that could be made against the estate. For example, your estate may be left to your second spouse, but your child from your first marriage may have a potential claim. Alternatively, if you leave all your estate to your children, a claim against the estate could be made by your former husband or wife because they were receiving spousal maintenance at the date of your death.   Tips on how to reduce the risk of a Will dependency claim under the 1975 Act There are lots of things that a Will solicitor can advise on to reduce the risk of financial provision claims, including: Creation of a trust during your lifetime. Lifetime gifting. Creating a discretionary trust in your Will. Preparing a careful letter of wishes to accompany your Will so your trustees can exercise their discretion and hopefully avoid a dependency claim. Taking family law advice, for example, capitalising spousal maintenance or taking out life insurance to cover any potential spousal maintenance claim against the estate. In addition to advising you on potential claims against the estate, your Will solicitor can also advise on estate planning to make your Will as inheritance tax efficient as possible, after considering your family and personal circumstances.   For expert Will writing advice call our team of specialist Will lawyers or complete our online enquiry form. ​ Evolve Family Law offices are in Holmes Chapel, Cheshire and Whitefield, North Manchester.  

Have you been asked to be the executor of the Will of a loved one or friend? In this article, our probate solicitors explain what an executor is and answer your questions on the role of an executor.   For expert probate advice call our team of specialist probate lawyers or complete our online enquiry form.   The appointment of an executor in a Will An executor is named in a Will as the person responsible for managing the deceased’s estate. The responsibilities of an executor involve: Working out what assets the deceased had. Gathering the assets in so that they can be distributed. Paying any outstanding debts. Paying any inheritance tax, capital gains tax or other tax liability. Applying for probate and obtaining the grant of probate. Sorting out any challenges to the validity of the Will or claims made alleging that the Will did not make reasonable financial provision for them. Finding any beneficiaries if they have moved address. Distributing the estate to the beneficiaries in accordance with the Will.   Appointment as an executor People often appoint a friend or family member as an executor in their Will. It may feel like an honour to be asked to fulfil the role of executor (assuming you are asked, as it is not that uncommon for people to only find out that they are one of the executors of a friend's or loved one’s estate after the deceased has passed away!). Unfortunately, executors can quickly realise how onerous the honour is. Sometimes, because executors have been personally appointed by the deceased to act as the executor, they feel that they must ‘’go it alone’’ not realising just how time-consuming a task acting as an executor can be or how difficult it is to resist pressure from friends and family to sort out the estate quickly. For executors who feel under pressure or all at sea with what to do with the paperwork, the administration and form filling and handling of queries and demands from beneficiaries, there is help at hand. An executor can instruct a specialist probate solicitor to deal with the estate. Acting with the executors, the solicitor will guide everyone through what can be a very upsetting and daunting process.   The benefit of an executor appointing a probate solicitor The benefits of an executor getting professional legal help in sorting out an estate are highlighted by the reported case of Glyne Harris. He hit the headlines as he was ordered to pay about £341,000 in inheritance tax because of his personal and legal obligations as the personal representative of Helena McDonald’s estate. How on earth could Mr Harris be liable for tax payable by the estate? A good question and one we are sure Mr Harris wishes he had asked when deciding to administer the estate without legal help. Mr Harris paid most of the deceased’s estate to a beneficiary on the understanding that the beneficiary would be responsible for payment of the inheritance tax from their legacy. This was a genuine mistake on the executor’s part. The beneficiary disappeared, leaving HMRC pursuing Mr Harris for the £341,000, because there was nothing left in the estate to pay the tax bill. The court ruled that Mr Harris was responsible for the inheritance tax bill because the executor of a Will is personally liable for paying any income, capital gains tax, or inheritance tax due, even if they have not received a legacy from the estate.   Key considerations if you are asked to be an executor of a friend’s or loved one’s Will Here are some key considerations if you are asked to be an executor of a friend’s or loved one’s Will: If you are asked to be an executor of a Will, it is a voluntary role. You can decline the honour. It is essential to ask who the other executor/s will be. If the other executor is a law firm, you may feel far more relaxed about your appointment. On the other hand, if the other proposed executor is a family member whom you know you will struggle to work with, it may be best to decline the appointment. If you are appointed as an executor without first being asked to act, or if your circumstances have changed after the Will was drawn up or for any other reason, you can decline to act as executor and renounce the role. If you want to act as an executor, you have the option of appointing a probate lawyer to handle everything and administer the estate. The solicitor’s fees are met out of the estate. The appointment of a solicitor not only reduces your executor's workload but also means that if a mistake is made (such as paying out the estate to the beneficiaries before the tax is paid), you can potentially pursue a claim against the solicitor under their insurance. If you agree to be the executor of a Will, the Will should ideally have been drawn up professionally. Why? If a specialist Will solicitor has not written the Will, the terms may be ambiguous. That in turn can lead to more complexities and time in sorting out the estate, and ultimately to more legal expenses in resolving the mistakes in the Will. As well as being personally liable for paying tax, the executor is also liable to make sure all debts are paid and that the correct beneficiaries are given the right legacy. This can be a minefield if the Will is ambiguous, leading to inheritance disputes or if there are many beneficiaries, or someone makes a claim against the estate alleging that the deceased didn’t make reasonable financial provision for them in the Will. If the executor appoints a solicitor to handle the estate, those worries are taken away from the executor. An executor cannot escape liability for errors or mistakes because they were doing their best or because they made an honest mistake. That’s why most executors decide to instruct a probate solicitor to give themselves protection.   You might also be interested in [related_posts]   What next if you are an executor of a Will? Well, firstly, don’t panic. The case of Mr Harris is rare. What isn’t so unusual is the stress that executors find themselves under when trying to do a good turn and handle an estate without the time or legal know-how. Probate solicitors can be very user-friendly, and appointing a private client solicitor to take the worry and stress out of sorting out the estate administration and paperwork following a friend or loved one’s death can be the best option. You are still the executor, but you have a professional to share the burden with you and guide and support you through the process.   For expert probate advice call our team of specialist probate lawyers or complete our online enquiry form.

Enquiries are rising about whether family members and loved ones can challenge Wills. In this blog, our Contesting a Will solicitors look at the grounds for contesting a Will.​   Call Evolve Family Law for advice on challenging a Will or complete our online enquiry form.   ​Can I contest a Will? The grief and distress experienced at a time of bereavement is increased if you don’t think that your loved one’s Will is correct or fair. It is best to take legal advice on the Will and whether you have the grounds to contest the Will. Our team of specialist lawyers provide discreet, sensitive advice about your options. What are the grounds for contesting a Will? You may be able to contest a Will if: The Will maker lacked testamentary capacity, or The Will was not executed properly, or The Will maker was unduly influenced to make the Will, or The Will was fraudulent or forged. In addition, if you have not been named as a beneficiary in a Will or if you haven’t been left as much as you need and you were dependent on the deceased, you may be able to bring a claim against the estate. This is different to challenging a Will on one of the four grounds.   Contesting a Will because of a lack of testamentary capacity A Will is not valid if the Will maker signed their Will at a time when they had lost their mental capacity to manage their own affairs (referred to as a lack of testamentary capacity by contesting a Will lawyers). That’s because a Will maker must have testamentary capacity to make or change a Will. Loss of mental or testamentary capacity means that the Will maker didn’t have the mental ability to understand what they were doing when they signed their Will and the impact that their actions would have on their estate. If the person signing the Will did not have mental capacity at the time it was executed, and if the Will is successfully challenged, the estate will pass and be administered in accordance with either: The deceased’s most recent valid Will, or If the deceased did not make an earlier Will, their estate will be distributed under the intestacy rules. It is therefore important to understand what would happen to the deceased’s estate if a Will is challenged, as intestacy rules can produce unexpected results.   Contesting a Will because the Will wasn’t executed properly A Will may not have been executed properly as it wasn’t signed by the Will maker or their signature wasn’t properly witnessed by two witnesses. If the Will wasn’t executed properly, then the Will is invalid. This means the deceased’s estate will pass in accordance with any earlier validly executed Will or, if there is no earlier valid Will, under intestacy rules.   Contesting the Will because the Will maker was unduly influenced to make the Will If the Will maker was under undue influence or was pressured or coerced into making a Will, the Will may be invalid. There may be a red flag over whether there was undue influence if the deceased was elderly or vulnerable and left their estate to someone they had only met shortly before their death, and the deceased had always stated that they would leave their estate to family members or friends. Any challenge to a Will based on undue influence has to carefully look at what evidence there is of undue influence, other than suspicion on the family member’s part. This is because to contest a Will based on undue influence, the applicant must be able to show that the deceased would not have made the legacy in the Will without being subject to coercion or undue influence.   Contesting a Will because the Will was fraudulent or forged If a Will is fraudulent or forged, then it is invalid. Examples of forged Wills include: Forging the Will maker’s signature to make sure the Will is executed, or Destroying a Will so that an earlier Will is thought to be the valid Will, or because, under intestacy rules, the fraudulent person will get the lion’s share of the estate.   Should I contest a Will? If you want to contest a Will because you have concerns about its validity, then it is best to take legal advice. A contesting a Will solicitor can assess: The grounds for challenging the Will The evidence The size of the estate Your prospects of reaching a compromise or securing a court order   You might also be interested in [related_posts]   How do you contest a Will? If you want to contest a Will, it is essential to act and obtain legal advice as soon as you can. That’s because there are time limits to contest a Will. For example, if you are bringing a claim as a dependant of the deceased, the time limit is six months from the issue of the grant of probate.   If you decide to contest a Will, then you can make a claim, referred to as a ‘caveat’, to the Probate Registry office. The claim means the probate won’t be completed, and therefore the estate won’t be distributed without your being notified and able to pursue the claim. The caveat lasts for six months but can be renewed if an extension is justifiable.   If, during the period of the caveat, you cannot resolve the Will dispute by agreement, then you have the option of starting court proceedings to contest the Will. When determining the application, the court will weigh up all the evidence. That’s why it is best to seek specialist legal advice before commencing court litigation. That way, you can make informed choices on whether pursuing the court case is in your best interests. Our Private Client and Contesting a Will Solicitors Deciding whether to challenge a Will isn’t an easy decision to make. For sensitive, pragmatic help, call Chris Strogen at Evolve Family Law or complete our online enquiry form.

As specialist Will solicitors, the lawyers at Evolve Family Law are keen to ensure that families understand the legal complexities of Wills and the family home and have Wills that reflect their wishes and meet their family's needs. For expert estate planning advice and help with your Will call our team of specialist Will lawyers or complete our online enquiry form. In this article, Will solicitor Chris Strogen looks at: Joint property ownership and estate planning Wills and joint ownership of property The family home and your Will Severing a joint tenancy The family home and estate planning options Reviewing your Will Joint property ownership and estate planning When you make a Will, it is crucial to check if you own any jointly owned property as joint tenants or as tenants in common with your co-owner. The jointly owned property could be: The family home A holiday home A buy-to-let property Investment property Commercial property Whatever the purpose of the property, a quick check with the land registry can establish if you and your co-owner (or co-owners) own the property as joint tenants or as tenants in common. Wills and joint ownership of property The different types of joint ownership of property are important when buying a property and when estate planning because: Joint tenants - co-owners automatically inherit property owned as joint tenants even if the deceased co-owner made a Will. Tenants in common- if one co-owner passes away, then their share in the tenancy in common owned property passes by their Will. If they have not made a Will, then their share in the property passes under intestacy provisions. The family home and your Will Many people assume that they don’t need a Will because if they die first, the house will automatically pass to their partner. That is not correct if you own the property as tenants in common. Even if you own a house as joint tenants, you should still have a Will. This is because a Will records what happens to other assets, such as household contents, your car, any savings or other property. When discussing your financial and family circumstances with your Will solicitor, you may decide that the best option for you is to sever the joint tenancy so your share in the family home passes under your Will rather than automatically to your co-owner. An estate planning lawyer will advise you of your options and how to write a Will that potentially could: Minimise the risk of family members claiming a share of your estate because they think that reasonable financial provision was not made for them, and Reduce the amount of inheritance tax payable by your estate. Severing a joint tenancy If you jointly own a property with a co-owner, you may realise that you don’t want your co-owner to inherit your share in the property. For example: You may own a family home with your former husband or ex-wife, or If you have children, you may want your children to inherit your share in the property. This could be achieved by leaving your share in the property to them in your Will or creating a Will trust so your partner has the right to live in the property for the remainder of their life, but your share in the property then passes to your children, or You may own an investment property with a sibling or friend. To avoid your co-owner inheriting your share of the jointly owned property, you can sever the joint tenancy so you hold the property as tenants in common. If you sever the joint tenancy, there are three points to note: You don’t need your co-owner’s agreement or consent to sever the joint tenancy. You need to make a Will, as without a Will, your share in the property will pass under intestacy rules. If you have an existing Will, you should consider reviewing the Will to ensure that it is up to date, inheritance tax efficient, and that you have minimised the risks of your Will being challenged. If you sever the joint tenancy and your co-owner passes away, their share of the property will pass under their Will or under intestacy rules. If the joint tenancy had not been severed, the property would have passed automatically to the co-owners upon the death of the first owner.   You might also be interested in [related_posts]   The family home and estate planning options If your family circumstances are complicated, you may be concerned about deciding on whether to make a Will, review your Will, or decide on whether to own your property as joint tenants or as tenants in common. You may be concerned about leaving your share of the family home to a new partner, as you feel the need to balance the needs of your new partner with those of your children from a previous relationship. There is a range of estate planning options to help you achieve a balance you are comfortable with. For example, you could give your partner a life interest in your share of the family home, allowing them to continue living in the property. However, if they sell or pass away, your share of the property will then pass to the beneficiaries named in your Will. Reviewing your Will You may have made your Will many years before you bought your jointly owned property, or the value of your estate may have changed. That is why it is important to review your Will to ensure your share of your property passes to the person or people you want to leave it to. By reviewing your Will regularly, as family and financial circumstances change, you can minimise the risk of your Will being challenged and protect your loved ones. For expert estate planning and help with your Will call our team of specialist Will lawyers or complete our online enquiry form.

Whether your estate will be liable to pay inheritance tax and the extent of the bill depend on a few factors. In this article, our estate planning solicitors outline the current inheritance tax rules.   Call Evolve Family Law for specialist estate planning and Will advice or complete our online enquiry form.   What is inheritance tax, and how much is inheritance tax? Inheritance tax is paid upon a UK-domiciled person’s death if their estate exceeds their IHT threshold (known as the nil rate band). Over the last 15 years, more estates have been left footing inheritance tax (IHT) bills on the death of a loved one because: Property values have risen, and Tax thresholds and exemptions have not increased with inflation. How much inheritance tax is payable?  If a deceased’s estate amounts to more than the nil rate band, then inheritance tax is payable at 40% by the estate. The nil rate band The tax-free inheritance tax allowance, also known as the nil rate band, is £325,000. The allowance has not changed since 2010, but it could be increased or reduced in future budgets. The inheritance tax rate The IHT rate is 40% of anything in your estate over the £325,000 threshold. However, special rules apply if: You are passing on a family home, or Some or all your estate falls within an IHT exception. Passing on a home The value of a family home is included in the value of your estate, but you will avoid paying IHT at 40% on the value of your family home if you leave your house to your husband, wife or civil partner. IHT rules also allow you to pass on a home to a family member with an extra £175,000 of tax-free threshold, so the total nil rate band is £500,000. The rules say the family home must be left to either: Your children – this includes adopted, foster and stepchildren, or Your grandchildren. To qualify for the additional nil rate band, the estate must be worth under £2 million. Exceptions to the payment of inheritance tax There are several ways for individuals to reduce the inheritance tax burden payable by their estate, such as: Giving money away during life, known as lifetime gifting. Putting money into a trust. Leaving money to charity. Business or agricultural reliefs. Leaving the estate to a spouse or civil partner – no tax is payable on the death of the first spouse, but tax will be payable on the death of the second spouse. There are complicated rules relating to inheritance tax planning, such as rules on taper relief. The rules are different if the deceased was not domiciled in the UK at the time of death. These tricky rules mean that it is always sensible to take professional legal advice on your Will and effective estate planning options. Lifetime gifting If you give away an asset, including a family home, there is usually no IHT to pay if you survive for seven years after making the gift. If you die within seven years of making the gift, then the amount payable in inheritance tax is tapered. If you continue to have an interest in the property that you have given away, HMRC may consider this a gift with reservation. HMRC could say the asset remains part of your estate when calculating liability for IHT. An example of a gift with a reservation is the transfer of the family home to your children during your lifetime, and you live in the property without paying your children market rent. If you unreservedly give property away but do not survive seven years from the date of the gift, then the seven-year tapering IHT rules will apply if the total value of gifts made in the 7 years before you die is over the £325,000 tax-free threshold. Taper relief rules The taper relief rules for gifts and payment of IHT are: Years between the date of the gift and death  Inheritance tax rate on the gift 3 to 4 years 32% 4 to 5 years 24% 5 to 6 years 16% 6 to 7 years 8% 7 or more 0%   You might also be interested in [related_posts]   Small gifts and gifts out of income Under current inheritance tax rules, you can also give away some money or possessions free of inheritance tax each year. There are four main exemptions: Annual exemption of £3,000. Small gift allowance. Gifts for weddings and civil partnerships. Regular gifts out of income. Annual exemption of £3,000 The annual exemption allows you to give away a total of £3,000 worth of money or gifts each tax year without the money or the value of the gift being added to the value of your estate. The gift of £3,000 can be made to one person or split between several people. Under the current tax rules, you can carry unused annual exemption forward to the next tax year, but you can only do this for one tax year. The small gift allowance The small gift allowance enables you to make gifts of up to £250 per person. There is no limit on the number of people you can give the small gift allowance to. However, you can't use the small gift allowance if you have already gifted the same person money under a different allowance, such as a wedding gift. Gifts for weddings or civil partnerships Gifts for weddings or civil partnerships allow you to give a tax-free gift to someone who is getting married or entering a civil partnership. The amount you can give depends on your relationship to the done. The current allowances are: £5,000 to a child. £2,500 to a grandchild or great-grandchild. £1,000 to any other person. Regular payments out of income If you make regular payments out of your income to a third party, then these are not classed as part of your estate and are not liable to IHT even if you die within seven years of making the gift, provided: You make the payments from your regular monthly income rather than savings, and You can afford the payments after meeting your usual living costs. An example of a regular payment would be an allowance paid to a child or financial support for an elderly relative. Leaving your estate to your spouse If you leave your estate to your spouse or civil partner, then they will not pay inheritance tax on the bequest – even if the gift is more than the inheritance tax nil band rate. However, this does not mean that no IHT is paid. On the death of the second spouse or civil partner, the estate will be liable to inheritance tax unless the second spouse can estate plan. Many families are blended with stepchildren and children from previous relationships. A Will maker (testator) may therefore not want to leave their entire estate to their spouse or civil partner. If an estate is left to a spouse without considering the needs of a child from a previous relationship, this may increase the likelihood of the Will being challenged. Whatever your family dynamics, it is best to take specialist estate planning legal advice. A Will solicitor can create a Will that provides inheritance tax efficiency and reduces the risk of the Will being challenged by a family member disappointed by the size of their inheritance. Wills and leaving your estate to your spouse Some people think they do not need to make a Will as their estate will automatically pass to their spouse under intestacy rules. This may not be the case depending on the size of the estate and how the assets are owned. There are other key reasons why you should make a Will even if you want to leave all your estate to your husband or wife: In your Will, you can appoint an executor to handle your estate. Your Will can say who your estate should go to in case your spouse predeceases you. A Will solicitor can ensure that assets will pass under your Will. People often assume that their assets will pass to their loved ones, but that is not always the case. For example, if you own property with a parent or sibling as joint tenants, then your share in the property will pass to your co-owners rather than to your husband or wife. A Will solicitor can check property ownership and, if necessary, sever the joint tenancy and convert your property ownership to tenancy in common so your share of the property passes under your Will. Estate planning Without estate planning advice, your Will may not be tax-efficient or may be vulnerable to challenge by an unhappy relative, such as a former spouse or a child who hoped to receive a share of your estate rather than your assets being left to a new husband, wife or civil partner. Our specialist Will lawyers can help you ensure that your Will limits your estate’s liability to pay IHT and protects your estate from challenges from potential claimants and challengers.   Call Evolve Family Law for specialist estate planning and Will advice or complete our online enquiry form.

Although society has changed toward unmarried relationships, the law on Wills and estate planning hasn’t kept pace. That’s why if you are in an unmarried relationship, it is essential to understand why you and your partner each need a Will.   For expert Will writing advice, call our team of specialist Will lawyers or complete our online enquiry form.   Wills and unmarried relationships If you are in an unmarried relationship, the law says that on your partner’s death: If your partner dies without a Will and intestacy rules apply, then as an unmarried partner, you do not get a share of the estate. That means you could be left with nothing unless you can make a court claim against the estate. As an unmarried partner, you can only bring a claim against the estate of a partner if your partner died intestate without leaving a Will, or they left a Will, but reasonable financial provision was not made for you in the Will, and you fall within one of two categories. These are a person who, for two years before the death of your partner, was living with the deceased as spouse or civil partner, although not married, or if you were being maintained by the deceased before the deceased’s death. That means to bring a claim as an unmarried partner, you either must prove a two-year relationship or dependency on the deceased. The estate cannot claim any married relationship-specific inheritance tax or capital gains tax exemptions or allowances.   Wills and married relationships When it comes to Wills and married relationships, unless you are a private client solicitor or have had advice from one, you probably won’t appreciate just what a difference a piece of paper makes, namely your marriage or civil partnership certificate. If your relationship has the legal status of marriage or civil partnership, then as a spouse or civil partner, you have: Intestacy law rights if your husband, wife or civil partner dies without leaving a Will, and The right to bring a claim against your husband, wife or civil partner’s estate if they leave a Will but the Will does not make reasonable financial provision for you, and Inheritance tax concessions as a spouse or civil partner, and Capital gains tax exemptions on transfers between spouses and civil partners.   Common law spouses and Wills As cohabitation is an increasingly popular form of relationship, and because many adults in the UK don’t have a Will, many people in unmarried relationships will be left in a financially vulnerable position on their partner’s death. Some people assume that they won’t have this problem as they are a ‘common law’ husband or wife, or because they have been in a relationship with their partner for over three or five years. These are all myths. There is no legal concept of a common law husband or wife. In law, you are either treated as married or unmarried.   You might also be interested in [related_posts]   What happens if my unmarried partner dies without leaving a Will? If your unmarried partner dies without making a Will, then their estate will pass under intestacy provisions. These are set out in statute. The intestacy rules say that the deceased’s estate will pass to: The deceased’s child, or if there is more than one child, the estate will be shared equally between the children (or their descendants). The child or children (or grandchildren) can get their inheritance when they reach the age of eighteen, or If the deceased doesn’t have any children or grandchildren, then their estate will pass to their parents, or if the parents have already passed away, to any siblings, or, if none, to more distant relatives. The intestacy rules can be challenged if you were in a cohabiting relationship for at least two years, or you were financially dependent on your partner, but that means court litigation against your children or your partner’s relatives.   What happens if an unmarried partner makes a Will? A Will sets out who should receive an estate or be left a gift out of the estate. If your partner leaves their estate to you, then the Will makes things a lot less complicated and far less stressful. Instead of having to make a court claim, you are entitled to the estate or gift. A legacy can only be challenged if another person successfully brings a claim against the estate. For example, saying the deceased did not have the capacity to make the Will at the time that the Will was executed because of a dementia diagnosis. Will solicitors say that if you are in an unmarried relationship, it is best to have a conversation with your partner so that you both know where you stand and to make a Will so that you and your family are protected in case your unmarried relationship is sadly brought to an end by the death of your partner.   Manchester and Cheshire Will solicitors For expert Will writing advice, call our team of specialist Will lawyers or complete our online enquiry form.

When private client solicitors talk legal jargon, it can be hard to take in what they are saying. It is tempting to just let their legalese wash over you, but if you are making a new Will with a Will solicitor or debating whether to sign a Power of Attorney, you need to understand what your lawyer is saying to you. In this blog, Will solicitor and legalese interpreter Chris Strogen explains the difference between the Executor of a Will and an Attorney in a Lasting Power of Attorney. For expert Will and Lasting Power of Attorney advice call our team or complete our online enquiry form. Will or Power of Attorney Do you need a Will or a Lasting Power of Attorney? Our private client solicitors say that, ideally, you need both as the documents are different to one another and serve different purposes. Many people don’t realise that they, and their relatives, need a Will and a Power of Attorney. They think that as they are an Attorney for a parent or grandparent, they don’t need to worry that their relative hasn’t made a Will. That’s not correct. The relative needs a Will and Power of Attorney. Here is how Wills and Powers of Attorney work separately: A Lasting Power of Attorney appoints Attorneys to act for you while you are alive. There are two types of Power of Attorney. The Power of Attorney ends on the death of the person who signed the document granting Power of Attorney A Will sets out how you want your estate administered after your death and says who will receive your estate. An Executor is appointed in your Will to administer the estate and arrange the distribution of money to your beneficiaries in accordance with your Will. A Will has no force or legal effect until the testator or Will maker has died. Therefore, an Executor of a Will has no rights to sort out the Will maker’s financial affairs, even if the Will maker has lost the capacity to make their own financial decisions A Will isn’t an alternative to a Lasting Power of Attorney and nor is a Power of Attorney akin to a Will. Both are necessary tools for an organised life. What happens if there is no Power of Attorney? Firstly, there are two types of Lasting Power of Attorney and they do different tasks. You can choose whether you want one or both types: Health & Welfare Lasting Power of Attorney – this type of Lasting Power of Attorney allows nominated family or friends (called Attorneys) to make decisions about the donor’s medical treatment and care needs if the donor cannot make decisions as they don’t have the capacity to do so Property and Financial Affairs Power of Attorney – this type of Lasting Power of Attorney allows Attorneys to manage the financial affairs of the person signing the LPA A Health & Welfare Lasting Power of Attorney doesn’t come into effect unless the person who signed it has lost the capacity to make their own health or welfare decisions. A Property and Financial Affairs Power of Attorney can come into effect when signed if that is what is required. For example, if a donor wants a relative to handle their financial affairs or a property sale whilst they are living overseas. If a person doesn’t have a Power of Attorney and a doctor assesses them as having lost capacity to make their own decisions then the fact that they are married or have a Will with a named Executor doesn’t give the spouse or the Executor the legal right to act on the person’s behalf even though they have their best interests at heart. Instead, there is a legal limbo situation until an application is made to the Court of Protection for a Deputy to be appointed. The Deputy may be the person’s spouse or Executor in the Will, but most financial institutions won't act unless there is either a registered Lasting Power of Attorney or order from the Court of Protection. Most private client solicitors recommend signing a Lasting Power of Attorney to cover for the hopefully unlikely event of temporarily or permanently losing capacity in an accident or through ill health, such as a stroke or dementia. What happens if you don’t have a Will? If a person dies without a valid Will, it is called dying intestate. The law says that any money and property pass under intestacy rules. The fact that the person had signed a Lasting Power of Attorney giving financial authority to an Attorney is irrelevant as the Power of Attorney ceases to have effect on death. The intestacy rules are very rigid. They say how much of the estate goes to a surviving husband or wife or more distant relatives if there is no spouse or children. This can produce very unfair outcomes when cohabiting partners or stepchildren won't be entitled to receive anything under the intestacy rules and an estranged cousin will inherit the entire estate unless the intestacy rules are challenged by a court application. [related_posts] Should the Attorney and Executor be the same person? A person can be an Attorney and an Executor of a Will but there is no requirement to appoint the same person. Most people prefer to appoint two Attorneys in a Lasting Power of Attorney so there is consultation before important decisions are taken. Most Wills include two Executors as that is necessary if the deceased owned property or if there is a trust because there are minor children. Choosing an Attorney and executor is very much a personal choice. Your choice may depend on the type of Lasting Power of Attorney you are signing. For example, your husband or wife is likely to be your preferred choice of Attorney for a Health & Welfare Lasting Power of Attorney but you may want to appoint your Will solicitor as the Executor of your Will as the solicitor will be handling the administration of your estate and ensuring that assets are sold and money distributed to your loved ones as quickly as possible. Whoever you choose to be your Attorney or Executor it is important to check with them first to ensure they are willing to act as an Attorney or Executor or both. That’s because both roles come with legal responsibilities that won't suit everyone. Making a Power of Attorney or Will Whether you are signing a Power of Attorney or a Will, both types of documents are all about forward thinking and planning. Our experienced Will and Lasting Power of Attorney solicitors can advise you on your choices to help you finalise a Power of Attorney and/or Will that reflects your wishes. For expert Will and Lasting Power of Attorney advice call our team or complete our online enquiry form.

Some people want to change their name after their divorce. Others worry that it will mean they have a different surname to their children. In some situations, a woman is told to change their name back to their maiden name because their ex-husband doesn’t want them to continue using his surname. In this blog, our Northwest divorce solicitors look at the law on changing your name and how to go about it if you decide to do so after your divorce. For expert divorce advice call our team of specialist divorce lawyers or complete our online enquiry form. Does your surname automatically revert to your maiden name after divorce? A woman's surname does not automatically change back to her maiden name upon her divorce. A conscious decision needs to be made. Our family law solicitors recommend you reflect on whether you want to use a different name than your married name and that you don’t allow yourself to be influenced by the views of your former spouse or family.  If you decide to change your name for a second time back to your married surname you can do so but it involves more paperwork. That’s why we suggest you consider your options rather than rush into a name change. It is also important to get the timing right. For example, you may not want to change your surname before a planned overseas holiday when your passport will be in a different name to your holiday booking or when you are a few days away from completing the sale of the family home. Changing your name after divorce  Anyone in England can call themselves what they want. There is no property in a name. By that, we mean that if you want to keep your husband's surname after your divorce you are free to do so. There is nothing he can do to stop you. Equally, you can change your first name, your surname or both names or revert to using your maiden name. How to go about changing your name You can call yourself what you want but you are likely to need evidence of your change of name. For example, if you want a new passport, to transfer your bank account into your new name or to buy a property.  If you are changing your surname back to your maiden name some institutions will accept your birth certificate, marriage certificate and final divorce order as sufficient evidence. Others may want a formal change of name deed. Our family law solicitors can prepare the change of name deed for you. We will ensure you receive sufficient certified copies so you can use the certified change of name deed with institutions such as banks, building societies, your employer, the DVLA and the passport office.  If you have a Will, you should keep a copy of your change of name deed with your Will and other important documents. When you get divorced you need to update your Will so it is sensible to sign your change of name deed before you sign your new Will. Our private client solicitors can advise you on your Will and your lasting power of attorney.  Registering a change of name deed You can register your change of name deed but there is no legal requirement or need to do so. An unregistered change of name deed document is referred to as ‘unenrolled’ and a registered one as ‘enrolled.’ Enrolling the deed involves an application to the Royal Courts of Justice and payment of a fee. Your change of name is then a matter of public record. [related_posts] Changing a child’s surname  Your decision to change your surname after your divorce may be influenced by whether your child can change their surname. A child can change their surname with the agreement of their parents and anyone else with parental responsibility for the child. If a parent or other person won't agree to the name change an application can be made to the family court for a specific issue order. In a specific issue order application, the judge decides on the child’s surname after considering the child’s best interests. Where a name change is agreed or the court orders a change of name a parent can sign a change of name deed on behalf of their child. The fact that a parent is not paying child support or a parent is not having regular contact does not mean that the court will order a name change. The court looks at the application from the perspective of the child and whether a name change would be confusing or beneficial.  Our family law solicitors can advise you on all aspects of parenting your child after a separation or divorce including advice on residence and contact, applying for a child arrangement order or reaching a parenting agreement through solicitor negotiations or in family mediation.  For friendly expert divorce advice call our team of specialist divorce lawyers or complete our online enquiry form.