Living Wills, Wills

Where is your will?

When making a Will it is important to know where the original document is kept.

If a Solicitor has made your Will you may have been given the option to leave the original Will with your solicitor for safekeeping in their deed store department. If this is the case then you will most probably have received a copy of your Will and will have peace of mind that your original is Will is safe.

If a Will has been made some years ago maybe through your Bank, the Bank may have stored your original Will. You may have been issued with a receipt with a storage number and address where you can request the original documents from if needed. Once again your Will will be safe and you should have a copy.

In either of these cases what happens if:

Your firm of solicitors has closed
Your solicitors have been taken over by another firm and moved their offices
Your bank has amalgamated with another bank (this has happened in recent years)
The local branch of your bank has closed
Ideally you, as the client of either the solicitors firm or the bank should have been notified in writing of the changes which have taken place and be advised as to where your original Will is being stored.

We do not live in an ideal world unfortunately and often notification will not always be provided.

Therefore it is beneficial to ensure that you keep regular contact (maybe every year or two) with the business who is holding your Will. This will provide confirmation that they are still in existence and your original Will is safe.

To make enquiries about the whereabouts of the documents held by a firm of solicitors who have closed or moved their offices, it is beneficial to contact the Law Society who may hold the records of where the documents are or who took over the firm of solicitors. If this is not possible enquiries can also be made with other firms of solicitors who have offices in the local area as these may be questions often asked of them in the past or they have knowledge of the local area.

The banks may be more straightforward as they should have retained records as to where the Wills originally stored with them are held and it may be that they have outsourced to another company or a firm of solicitors.

Knowing the location of your Original Wills is important because if a Grant of Probate is required after death the original Will is needed. If the Will cannot be located and only a copy is held, there are many additional procedures which have to be followed to submit an application for a Grant of Probate of a copy of a Will. This can often be costly.

Even if a Grant of Probate is not required in the deceased’s estate, it is beneficial to ensure that you know where the original Will is. At this time only the Executors can request the original Will with a death certificate. The Original Will may never be needed again but if there is ever a claim to pursue on behalf of the deceased’s estate eg – medical negligence or a challenge to the payment of care home fees a Grant of Probate may be requested to permit the claim to proceed to settlement.

Therefore if one spouse has died, and a Grant of Probate is not required, the surviving spouse is advised to keep the Original Will with their own Will as it may be needed for such a claim, or to show who benefited from the deceased’s estate (for inheritance tax purposes).

If a parent or elderly relative has been in a care home and has privately funded their own care for several years, it may be once enquiries have been made that they were eligible for funding from the NHS. (There are specialist firms who undertake such claims). The original Will will be needed to apply for a Grant of Probate, even if the Will was made many years ago, if it was the original last Will made by the deceased relative it will still be valid.

Once again the knowledge of the location of the Original Will is essential.

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Disputed Will, Living Wills, Uncategorized

The effect of “separation” on your death

Upon the breakdown of a marriage/civil partnership it is usual for the parties to proceed to finalise the end of their union by applying for a divorce or dissolution of a civil partnership.

Upon the Decree Absolute/Dissolution Order being granted the marriage/civil partnership is over and both parties are then free to proceed with their own lives individually.

However more and more situations are arising whereby a couple separate and never divorce/dissolve the civil partnership. In such situations the parties to the union become estranged.

No formal arrangements are made and it is usual for any assets held in the couple’s joint names to be divided at the date of separation. At that time each party then proceeds to lead their own individual lives, forming new relationships etc.

The only connection between the estranged couple is the validity of their marriage/civil partnership.

This is now posing a great problem upon the death of one of the estranged spouses/civil partners, irrespective of whether or not a Will has been made in favour of a new partner. Any Will made may have supporting declarations to state why they have not included their estranged spouse/civil partner in the Will due to a long term separation. (Please be mindful that such supporting documents will not prevent the estranged spouse/civil partner from making a claim on the deceased’s estate but it will serve as evidence as to why the deceased excluded them from the Will).

All matters after death may proceed without any issue until:

  1. A life policy with a nominated beneficiary is found – this will inevitably still be in the name of the estranged spouse/civil partner. The proceeds of the policy will more than likely be paid directly to the nominated beneficiary.
  2. Any widow’s pension or death in service benefit is likely to be paid to the estranged spouse/civil partner in place of the deceased’s current partner. This will cause upset and delays in payments being made, as the current partner will try and appeal to the Trustees of any pension or death in service benefit payable. The Trustees of the pension fund will make the final decision. If there is no dispute from the estranged spouse/civil partner, the decision may be favourable to the deceased’s current partner. In the event that the estranged spouse/civil partner proceeds with their right to claim, this may result in no payment being received by the deceased’s partner.

Therefore an informal separation may at the time appear to be the more cheap and amicable way to proceed. However upon the death of an estranged spouse/civil partner, problems may arise as the parties are still legally married/civil partners.

Estranged spouses/civil partners will still legally be the next of kin to the deceased. This may entitle them to make the funeral arrangements and deal with the estate – potentially alienating any current partner of the deceased. This, to an extent, can be remedied by ensuring that your Will is updated upon any separation.

The case of Williams V Martin currently being heard in the courts presents these facts:

  • Spouses separated over 20 years ago
  • The deceased lived with his partner for over 18 years and they built a life together
  • No divorce ever took place
  • The deceased failed to update his Will to reflect the change in his circumstances and make any provision for his long term partner
  • Consequently the estranged wife is claiming she should receive his estate as the marriage is still valid
  • At the time of writing a decision has not been reached.

Therefore upon separation it is advisable – if the decision is final – for the parties to:

  1. Proceed with a divorce/dissolution of a civil partnership to provide clarity in the future for both parties
  2. Update your Wills (whether or not a divorce/dissolution of a civil partnership has been finalised) to reflect any new relationship and also the inclusion of any children
  3. Review your nominated beneficiaries for any life polices or death in service benefits.

For further information, please contact our Wills and Probate department on 033 3344 9600, or complete our contact form.

 

 

Inheritance tax, Living Wills, Uncategorized, Wills

New Year…make a Will

Happy New Year!

Welcome to our first Blog of 2016. In the new year, many people like to make a fresh start or may even make a resolution. So now may be a good time to give some serious thought to making a Will?

A Will is the only way to ensure your loved ones inherit what you want them to have. A Will also prevents your estate being distributed in accordance with the intestacy rules. Depending on who survives you, the intestacy rules could result in an estranged relative inheriting your estate. A Will gives you peace of mind knowing that the intended recipient receives your estate.

Appointing Executors of your Will is also an important decision. Executors are the people who are responsible for dealing with your estate assets when you die. You can appoint anybody as an Executor. Most people tend to appoint family members, although some prefer to have a professional, like a Solicitor.

A Will also allows you to appoint Guardians if you have young children and stipulate that money should be held in trust for your children, if necessary.

A Will may also allow you to mitigate inheritance tax and therefore it is important that you discuss this issue with a professional. Putting it off can result in your estate being liable to a large amount of tax. Taking advice from a solicitor is a sensible step.

Above all, making a Will gives you peace of mind. Why wait? Give Morrish Solicitors a call today on 033 3344 9600 and ask to speak to James Shingleton or Charlotte Bandawe at our Pudsey office or Tom Morrish or Monika Volsing at our Yeadon office.

Best wishes for 2016!

Care Home, Dementia, Living Wills, Power of Attorney, Probate

Dementia awareness

Sadly the prevalence of dementia is increasing within our ageing population. There are more cases and people are living longer with the illness. This is causing pressure on the NHS, care homes and stress for those suffering and their families.

At Morrish Solicitors our elderly client department are looking to assist those who have received a diagnosis of dementia and their families or carers. We recently attended, through a professional organisation Solicitors for the Elderly (www.solicitorsfortheelderly.com), a meeting with the Alzheimers Society to see how members of Solicitors for the Elderly could assist.

At Morrish Solicitors we are seeking to make our four offices Dementia friendly and will be joining the Dementia Action Alliance (www.dementiaaction.org.uk) We are looking to see how we can make our services more user friendly for the ageing population.

With offices in four locations around West Yorkshire Morrish Solicitors are on hand to assist. In dementia situations it is important to act early to sort out legal issues and our four solicitors are always ready to help.

Care Home, Living Wills, Wills

Southern Cross anxiety over Care Home company’s future

From the BBC’s News website. Reproduced with kind permission of the BBC.

1 June 2011 – Thousands of elderly residents face an anxious wait after the UK’s biggest care home company said it would reduce its rent bill amid financial troubles.

The announcement means Southern Cross will pay nearly a third less to its landlords over the next four months.

There are concerns that if this move does not work, its 31,000 residents could be left “high and dry”.

But Health Select Committee chair Stephen Dorrell MP said the government should not consider a bail-out.

“It doesn’t seem to me that it’s the taxpayers’ job to fund the losses that have been suffered by the people who have invested in Southern Cross, that was their risk and it’s their loss,” Mr Dorrell told the BBC.

“What we need to do is to ensure that the care provided to people resident in Southern Cross homes is sustained, and those people’s needs are met.”

Darlington-based Southern Cross recently reported half-year losses of £311m.

The company, which operates 750 homes, warned then that it was in “critical financial condition”.

‘High and dry’

There has been mounting concern over the situation among the elderly residents and their carers and relatives.

Judy Downey, from the Relatives and Residents Association charity, said the developments were worrying.

“It’s a mixture of anguish and concern and panic,” she said.

“The whole business of closure of care homes is something the Relatives and Residents Association has been really concerned about for some time.

I anticipate, over the next week or two, landlords will start to take back their homes” -Paul Saper Financial consultant

“Homes close on a regular basis for one reason or another, and we’re very concerned that they have the same status in law as a corner shop that gives up, and people are left high and dry.”

Roy Lilley, a health policy analyst and former NHS Trust chairman, said Southern Cross was in a difficult position.

“The problem is in a normal business, if you run into trading difficulties, you can circle the wagons, you can close some branches that are not profitable, you can get rid of staff and just generally cut the overheads,” he said.

“But here you can’t do that, you’ve got 30,000 of the country’s most vulnerable people who depend on this company for a service.

“You can’t shove them around, you can’t decant them because clearly some of them are very frail and very vulnerable.”

However, there has been some good news for Southern Cross from the Association of Directors of Adult Social Services, which said local councils would try to help the company bounce back.

The association’s president Peter Hay said: “As councils buying care from Southern Cross, we are willing to work with all parties to support the recovery of the business.

“The care sector has many viable businesses delivering high quality care and we can achieve that for Southern Cross residents if all parties co-operate and continue to put the interests of residents and their families first.”

‘Critical mass’

Southern Cross said on Tuesday that it would defer 30% of its rent for four months while it tried to resolve its financial difficulties.

It also reiterated its belief that a longer-term solution to its troubles would be “forthcoming”.

The firm said it was confident “a critical mass of landlords” would support the move. However, there has been no official agreement.

The rent deferral runs from 1 June to 30 September. Southern Cross said it would issue an update in July.

Company chairman Christopher Fisher said: “We believe that all of the key stakeholders in Southern Cross want this restructuring to succeed.

“We are in dialogue with the Department of Health, our lenders and our landlords and they continue to support the process.

“The objective will be to emerge with a stable and sustainable business model for the continuing care of our residents.”

But financial consultant Paul Saper, who has analysed the private care sector, told the BBC: “They can make a decision themselves not to pay the rent, but their landlords don’t have to turn round and say: ‘We accept that’.

“That’s not going to happen, because these landlords also have responsibility to their shareholders.

“I anticipate, over the next week or two, landlords will start to take back their homes. And why should they not do so?”

From the BBC’s news website.