Probate, Uncategorized

Probate Court Fees – Expected Hike

The Government has issued proposals to increase the fee paid to the Probate Registry for obtaining a Grant of Probate.  A Grant of Probate is very often required when someone dies to allow the estate to be administered.  Currently the fee is £155.00 for all estates which have a value of more than £5,000.

Is this fair?

The proposals suggest that there should be no fee for estates of value less than £50,000 which will make it cheaper to administer estates of less than that sum.  However the raising of this threshold is countered by a massive increase on higher value estates.  For example the fee to obtain a Grant of Probate for an estate worth £2 million or more will become £20,000.  The following consequences seem either to unfair or unsatisfactory or both:

  1. People seeking to organise their affairs (especially the elderly) might be persuaded to move their assets out of their name to their children or into some form of ‘Trust’ so that when they die their estate is of a lower value and therefore a Grant of Probate will not be necessary.  Vulnerable people might be persuaded to part with assets, which may not be in their best interests.  Unregulated organisations might see this as a marketing tool to try and grab business from elderly people in this manner.
  2. Although most very large estates will have cash in them to enable payment of the probate fee some very large estates may almost entirely consist of property or shares and it may not be easy to find cash for the probate fee which has to be paid up front.
  3. People might be tempted to put their money in lots of very small accounts to try and enable each account to be administered individually after their death so that a Grant of Probate is not required.
  4. The current proposal is not designed to ensure that the Probate service simply pays its way.  The service currently pays its way.  This revenue raising exercise is designed to subsidise other parts of the Court and Tribunal Service.    Charging such high fees to deceased estates is probably seen by the Government as an easy target to fund other areas of the Court and Tribunal Service.

Government consultation ends on 1 April 2016 and one can only wait to see what the outcome will be.

Whatever action individuals might be prepared to take to deal with increased probate fees they should always ensure that when dealing with a professional, the professional is regulated and insured before undertaking any business with them, or handing over any money.  The advantage of using a solicitor is that solicitors are regulated by the Solicitor’s Regulation Authority and all carry insurance.  Firms of solicitors which close or merge can be tracked through the Law Society so that documents held by a former firm of solicitors are traceable in the future.

Tom Morrish

Partner

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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!

Uncategorized

86% in Yorkshire & the Humber leave life-changing decisions in the hands of strangers

86% of people in Yorkshire and the Humber are currently living with no control over important later-life decisions around their housing, assets, heath and care, according to a new report by SFE (Solicitors for the Elderly), the national organisation representing legal professionals such as Morrish Solicitors LLP specialising in helping people plan for later life.

The report reveals that whilst 39% of people in the region have a will in place to manage their affairs after death, only 7% have a lasting power of attorney (LPA) in place to safeguard their wishes in the event they are no longer able to make decisions for themselves, due to an accident or illness like dementia.

85% want a family member or friend to make important decisions on their behalf, in the event of illness or an accident. However, few are aware that without an LPA in place, their affairs, such as their finances, end-of-life wishes and health treatments, could be left in the hands of solicitors, social workers, doctors or the courts.

Even the minority of people that have taken steps to plan ahead for later life may still be at risk, due to poor quality legal advice and invalid documents. 38% of the people with LPAs in place did not use experts or legal guidance, instead taking a gamble using online resources, non-legal advisers, or off-the-shelf kits.

Lakshmi Turner, Chief Executive of SFE, said: “Most people assume that if they suffer an illness or accident, their next of kin will be responsible for vital decisions. The reality is starkly different – loved ones may not be able to make a decision on your behalf unless you have an LPA in place.

An LPA is by far the most powerful and important legal document an individual can have. If you have children, own a home, or have views on your preferred health treatment, we urge you to go to an expert to get the right advice.”

SFE is an independent, national organisation of professionals, such as solicitors, barristers, and chartered legal executives, committed to providing the highest quality of legal advice for older and vulnerable people, their families and carers. To download the report ‘Who will decide for you when you can’t?’, go to www.sfe.legal.

For more information about how Morrish Solicitors can help you make your Lasting Powers of Attorney, please call 0333 3449600 and ask for Tom or Monika at our Yeadon office, or Charlotte or James at our Pudsey office, or email info@morrishsolicitors.com

Uncategorized

Important things to do if your elderly relative or friend goes into a Care Home

  1. Check the relative’s house is secure – Insurers are notified, valuables are removed etc.
  1. Check that someone is able to manage the relative’s financial affairs.  Most  residents of Care Homes will need assistance with their financial affairs.  Check if there is a Lasting Power of Attorney or Enduring Power of Attorney authorising someone to handle financial matters.
  1. If there is no Power of Attorney, can the relative sign one now to appoint someone to assist?  If they are able to understand a Power of Attorney then you should discuss this with the relative as soon as possible.
  1. If the relative is unable to understand a Lasting Power of Attorney then it is necessary to apply to the Court of Protection.  Someone will need to apply to the Court to be appointed as a Deputy to manage the financial affairs. This takes time (four months or so) so it is sensible to get on with it, as financial matters will need sorting.
  1. Apply for Attendance Allowance if this is not being received already.  This is a tax-free benefit which is not means tested for elderly people who need assistance with care.  The rate is £55.10 per week if the relative needs help during the day only, and £82.30 per week if assistance is required both day and night.
  1. Consider how the care is going to be paid for.  The Local Authority will provide assistance with care if a person has assets less than £23,250. Otherwise it is necessary to pay for the care in full.
  1. It is always sensible to obtain advice about the above matters.  Solicitors who are members of “Solicitors for the Elderly” will always be able to assist.  At Morrish Solicitors, four of our Solicitors are members  Tom Morrish and Monika Volsing work at our Yeadon Office.  Charlotte Bandawe and James Shingleton work at our Pudsey Office.  We also see clients at our office in Oxford Row Leeds LS1 3BE.  See solicitorsfortheelderly.com
Uncategorized

How does the decision in Ilott v Mitson affect you?

The decision of the Judge in the case of Ilot v Mitson, reported widely in the news recently, is worrying to many people who have made a Will, or who are considering making a Will.

When making a Will, you should give a lot of thought to deciding who to include and, sometimes, who to exclude as beneficiaries (i.e. the people who receive your estate when you die).

Once the Will is made, you would expect to have peace of mind that your wishes, as set out in the Will, would be carried out.

The reasons for excluding somebody can be:

  1. Family fall outs
  2. No contact
  3. That person is reasonably provided for (by you during your lifetime or they are financially well off in their own right)
  4. There are more preferential beneficiaries
  5. General dislike of the person

But any disappointed potential beneficiary not included in a Will could make a claim under s2 of the Inheritance (Provision for Family and Dependants) Act 1975 provided that they fall within one of the categories of claimant defined under s1 of the Act.

Now Ilott v Mitson appears to have widened the scope for successful claimants but when looking at the decision in depth, has it really?

The facts of the case (in brief) are:

  • An adult daughter fell out with her mother many years before the mother died
  • There was very little contact between the two
  • The mother made a Will leaving her estate between several charities
  • No provision was made for the daughter on the basis of the history between them

The Court’s decision to grant the daughter a share of the estate was based on the following facts:

  1. The daughter had a reasonable expectation to inherit from her mother’s estate irrespective of their past relationship
  2. The daughter’s personal circumstances were taken into account, in that she lived in council owned accommodation and was mostly reliant on state benefits
  3. The deceased had little or no personal connection with the charities, in that she did not donate to them on a regular basis
  4. It was felt that the mother was acting spitefully in excluding her daughter from the Will

The decision made was based on a very narrow set of circumstances which were personal to the daughter herself and would not be applicable to every claim made by a potential beneficiary. Therefore this case cannot be seen to automatically set a precedent for future claims on estates.

In view of this case, when excluding someone from a Will, it is advisable to prepare a supplementary letter including the following:

  1. Your reason for their exclusion from the Will
  2. Details of your past relationship
  3. The reason why the beneficiaries named in the Will should benefit rather than the excluded person
  4. Any other supporting documents

Please be mindful that this will not prevent a disappointed person making a claim but it will provide valuable evidence as to why the claim should not succeed.

Uncategorized

HSBC Wills and Probate

In June 2015, HSBC sold their Wills and Probate business to a company called Simplify Channel Ltd, with the transfer date expected to occur on 30th October 2015. Simplify are based in London, which is seen as a concern to our clients in Yorkshire.

Over the years, we have seen many clients who have had their Wills drafted by HSBC. In most cases, the Wills appoint HSBC as the Executors.

HSBC have sent a letter dated 10th July 2015 to all customers that have made a Will with them, giving them the option to sign a Codicil to appoint Simplify or another Executor of their choice instead of HSBC, or to inform HSBC that their Will is no longer valid.

The clients we have spoken to were given a deadline of 31st July to respond. Simplify will not be able to act as Executors unless Wills are changed.

We have been helping worried HSBC customers who wanted to make sense of the letter and obtain proper legal advice before making a decision.

In most cases, we would advise clients to make a new Will or Codicil to amend the Executors named in their Will and choose a family member, trusted friend or our firm to assist in the administration of the estate. Many clients have said that keeping their business “closer to home” is important to them.

We are happy to write to HSBC to request the return of your Wills and we will take steps to make the necessary changes to the Wills.

HSBC provide no information of the financial arrangement between them and Simplify. Often firms who act for banks charge customers much higher fees to take into account referral fees they pay to banks.

Simplify are not regulated by the Solicitors Regulation Authority. On their website, Simplify claim to have acted on behalf of banks for over 25 years, but Companies House shows the company as having been set up in 2012. Simplify are a subsidiary of Chorus Law Group Ltd, itself a reincarnation of a company called Independent Trust Corporation Ltd. We would strongly advise you to research these companies carefully. On their website, Simplify do not provide details or profiles of any members of staff. If HSBC have sold your Will without your permission, you may feel more comfortable with a more personal service.

If you made a Will with HSBC and have received the letter from them, or if you haven’t been contacted yet and are not sure where you stand, we would strongly advise you contact us on 033 3344 9600 for further advice.