Frequently Asked Questions

Personal and Family Law

I have been living with my partner for 10 years now, surely they will be classed as my common-law husband/wife and automatically inherit my estate?

The rules of intestacy do not apply to cohabitees. If your partner was financially dependant upon you, they will have to make a claim against your estate under the Inheritance (Provision for Family and Dependants) Act 1975 which could be costly and cause problems within the family.

Where should I store my will?

Your will should be stored in a safe place as the original will be needed for probate. If a will is missing, it will be presumed that it has been cancelled. It is a good idea to tell your executor and family where you have stored a will.

I don’t need a Will if I don’t have very much?

You may have heard the phrase ‘worth more dead than alive’ and this is often true. Whilst you are alive, you only consider your cash assets as being worth anything but in reality, if you own a property, have life insurance policies, death in service, pensions etc, they are all assets which can be passed on to loved ones.

What is the difference between Executors and Trustees?

Executors are the people you appoint to deal with the administration of your estate after you have died. Trustees are the people you appoint to administer any ongoing trusts contained in your will. Both roles can be fulfilled by the same person.

When do I pay inheritance tax?

The current threshold (nil rate band) for when an estate pays inheritance tax is £325,000 and anything over and above that will be taxed at 40%. However, since the Finance Act 2008, a married couple will be able to combine their allowance giving them a combined total of £650,000 on the current figures.

How can I ensure that my estate is protected for my children?

If you leave your estate outright to someone (e.g. a spouse), they are free to use and dispose of it as they wish. If they get re-married, they may decide to favour their new spouse and children may lose out. To prevent this from happening, you may wish to include a trust within your will to ring-fence assets for your children.

Can I make a joint Will with my spouse?

Each person usually makes their own Will setting out their wishes but couples can make ‘mirror Wills’ which reflect similar wishes.

If I die, everything will go to my spouse automatically so I don’t need a Will?

If you die without a Will, your estate is dealt with in accordance with the rules of intestacy and who your estate passes to will depend on the value and the members of your family.

Can a trustee be held personally liable?

Yes – if a trustee acts outside the remit of his powers then he may be held personally liable for any loss arising from this breach of Trust!

What is a settlor?

The settlor is a person who creates a trust by passing assets to the trustees. Trusts can also be called settlements and this is where the term derives.

Is a trust a separate legal entity?

A Trust does not have separate legal identity such as a company does but it will be separate from a trustee’s own personal affairs and if it is registered at the tax office it will have its own tax reference etc.

Can a trustee also be a beneficiary?

A trustee can also be a beneficiary but problems may arise if there are issues where a conflict of interest may apply. Suitable additional provisions may be required in the trust document to ensure no problems are caused.

In whose name should trust assets be held?

The key thing is that trust assets are registered in the names of all trustees and as a general rule all trustee’s decisions must be unanimous. Ideally, there should also be some designation on the investment or account that the asset is held as trustees of the said Trust.

Is there a maximum number of trustees?

The maximum number of trustees that can be registered for property at the Land Registry is four and we would suggest that this is the maximum number of trustees that should be appointed.

Why can’t you go to court retaining your existing lawyers if I and my partner/spouse fail to reach an agreement?

The reason that collaborative family law has been successful and developed (in other jurisdictions) is the fact that the lawyers are disqualified from acting for the client should collaboration fail.  The disqualification agreement means that all the parties, including the lawyers and clients, are attempting to achieve settlement without threatening or being subject to the threat of court proceedings when things become difficult.

You are collaborating without the background of potential court litigating, and lawyers are encouraged to work together in assisting you to reach settlement.

By agreeing at the outset not to go to court, your partner and the lawyers can be encouraged to reach creative settlements.

What if some time after issuing a settlement agreement in the collaborative law process, I discover that my partner has failed to disclose relevant information?

The settlement agreement reached during the collaborative family law process is no different from any other negotiated settlement. If the outcome of the settlement would have been different if the information had been available, then it is open to you to seek to overturn the agreement, even if it has been confirmed by a court order.

What happens if my partner/spouse does not give full and frank financial disclosure or undertake the collaborative family law process in good faith?

Under the terms of the collaborative agreement, the lawyer must withdraw from acting from their client if he/she has withheld or misrepresented information intentionally or is participating in the process in bad faith. Likewise, it is open to your collaborative family lawyer to advise you to withdraw from the process if they do not consider that your partner (or indeed their lawyer) is keeping to the terms of the agreement.

If you consider that your partner will not be honest during the collaborative process, then collaborative family law is unlikely to be a good choice for you.

What kind of information and documents do I have to provide in collaborative family law negotiations?

You and your partner sign a participation agreement which provides full and frank disclosure of all documents and information that relates to the issues. Disclosure is made at an early stage.

What is the difference between collaborative law and mediation?

 

  • In mediation the mediator is prohibited from giving either of you legal advice and cannot assist you in advocating your position. A mediator is neutral;
  • The mediator is there to facilitate you and your partner and has a duty to advise you each to take separate legal advice, either during the process or after;
  • Any settlement discussed during mediation is only binding once each of you have had the opportunity of taking separate legal advice and have transferred the agreement into a separate consent order of the court. The mediator cannot prepare the court documents for you nor finalise the process;
  • Provided agreement is reached your collaborative lawyer can act for you in the divorce and prepare the court papers to obtain the consent order;
  • Lawyers are rarely present during the mediation sessions and their advice may be given too late to assist in the process;
  • In collaborative family law, you each have your own lawyer throughout the process advising you and advocating on your behalf. If you and your partner lack negotiation skills or financial understanding or feel vulnerable when in the sole presence of the other party, collaborative family law could be preferable to mediation;
  • Mediators may still have a role in the collaborative process if you and your partner wish to consult a mediator regarding an issue. Collaborative lawyers can assist you in finding a suitable mediator.

Is collaborative family law the best choice for me?

Collaborative family law is not for every client or indeed every lawyer but it is worth considering if some of the following is important to you:

  • You want a dignified non-aggressive resolution of the issues;
  • You and your partner have children and wish to reach a resolution by agreement with their needs and interests being your priority;
  • You do not wish to incur the costs and animosity generated by court proceedings;
  • You would like to keep open good relations with your partner in the future;
  • You and your partner have extended family and a number of friends to whom you would both wish to remain in contact in the future;
  • You value retaining control over decisions about your financial arrangements or arrangements in relation to the children but with advice from experts;
  • You do not wish to 'hand over' decision making to either your lawyer or to a court;
  • Your main aim in the process is not to 'seek revenge' on your partner;
  • You need the assistance of a lawyer to help you negotiate in face to face meeting.

What is a 4-way meeting?

 

  • A ‘4-way’ meeting is where you and your partner sit in a meeting with your collaborative lawyers to discuss the issues you wish to resolve;
  • An agenda is set before the meeting by your collaborative lawyers taking into account the issues you both wish to discuss;
  • You and your partner have a duty of full and frank disclosure. You both provide all documents within the process;
  • Correspondence between lawyers is discouraged, thereby keeping costs and acrimony to a minimum;
  • Discussions focus on the needs and interests of you, your partner and the children;
  • Meetings are arranged at the start of the process without you having to wait for court dates. Provided all the participants enter the process in good faith, the process is faster, cheaper and less acrimonious than the court proceedings to reach a resolution;
  • You and the lawyers can work as part of a group of professionals, including counsellors, mediators and child and financial specialists to draw on the skills of other professionals to assist you and your partner in the process;
  • For issues requiring expert opinions (for example an accountant to give tax advice or value a business) the collaborative team will normally jointly instruct independent consultants, following discussions with you at the ‘4-way’ meeting.

What is collaborative family law?

 

  • You and your partner retain separate specially trained lawyers who will assist you in resolving issues without going to court;
  • Your collaborative lawyer acts for you, providing legal advice and guidance throughout the process, but working with your partner and his/her lawyer as part of a team to help achieve settlement;
  • You, your partner and your lawyers agree to work together in a respectful, honest and dignified way to try and reach settlement without threatening to go to court;
  • You sign an agreement disqualifying your collaborative lawyers from representing you at court if the collaboration process breaks down. Neither of the lawyers, or their respective firms can then act for you although they will still be bound by confidentiality about any negotiations which had occurred. You would need to instruct new lawyers to proceed to court;
  • Issues are discussed and hopefully resolved in ‘4 way’ face to face meetings between you, your partner and your lawyers. Settlement discussions take place in your presence which helps ensure that you and your partner remain in charge of the process. The process thereby helps improve future communication, this is particularly important when you have children.

What is the aim of collaborative family law?

To assist you both to resolve all matters arising out of your separation in a dignified and respectful way for the benefit of the whole family.

How do I get a copy of a will after someone has died?

If a Grant of Probate has been issued, the will becomes a public document and a copy can be obtained from the Probate Registry.

What happens if the person who has died hasn't made a Will?

If someone dies without a valid will they are intestate. There is an order of people who can then deal with the estate and inherit it. Please speak to our team for advice about seeing who is entitled to deal with matters.

How many executors need to act?

You can appoint up to four people to act as executors in your will but normally one or two will act in the estate. It is better to appoint at least two as if one of them is not able to act; there is another person who can deal with your affairs. If your will leaves assets in trust you may want to have at least two who can deal with the trust once your estate has been dealt with. You can also appoint professionals to act as your executors with your family or friends.

Do I have to act if I have been appointed as an executor?

When someone is appointed under a will as an executor they can act but may choose not to, perhaps because they don’t have time to deal with the estate administration, maybe they are in poor health, or are one of a number of executors and are happy to leave it to the others to deal with matters particularly if they live abroad. An executor can have ‘power reserved’ to them which means they step aside to enable the other executors to deal with the estate administration but can step in at a later date if they need to. If they don’t want to be involved in the estate at all, they can renounce their appointment as an executor by signing a deed of renunciation. They can only do this however if they have not had any dealings with the estate since the death.

How long does it take to get a Grant of Probate?

There are a number of steps to be taken in dealing with an estate and each estate can vary widely depending on the nature of the assets, the value of the estate, how quickly institutions respond to queries and also on the number of beneficiaries involved. On average we find that an estate may take between 6 and 12 months to administer. See our Probate Checklist for more information on the estate administration process and how we can help.

What is a Grant of Probate?

A Grant of Probate is a court order which gives authority to the executors to deal with a deceased’s estate. If there was no valid will, the order is know as a Grant of Letters of Administration and is issued to administrators. You sometimes also hear the term ‘personal representatives’ which can mean either an executor or an administrator.

What do I need to do when someone dies?

There are a number of steps to take immediately after a death, including registering the death and contacting the executors if the deceased made a will. See the attached Probate Checklist for more information on the estate administration process and how we can help.

I am an attorney, can I make gifts out of the donor’s money?

Only on customary occasions and only amounts that are reasonable in relation to the donor’s finances as a whole. If you want to make larger gifts than this, usually you would need the court’s approval.

How much does is the court fee to make an application to have a deputy appointed?

The court charges a fee of £400 per application. Once the deputy is appointed there are then further charges made by the Office of the Public Guardian (OPG) in respect of an appointment fee (currently £100) and a supervision fee, which varies depending on the level of supervision that the OPG believe is required.

How much does the Office of the Public Guardian (OPG) charge to register an LPA or EPA?

Currently £110 per document.

I don’t have any family members or friends that I want to ask to be my attorney. What can I do?

We would be happy to act on your behalf as a professional attorney, but only in relation to property and financial affairs. We have many years experience of doing this for our clients.

I have an Enduring Power of Attorney (EPA), is it still valid or do I need to make a Lasting Power of Attorney (LPA)?

Existing EPAs are still valid, although no new ones can now be made. An EPA will only give your attorneys authority to make decisions about your property and financial affairs. If you want them to be able to make decisions about your health and welfare then you would need to make an LPA for health and welfare as well.