Will solicitors say when people decide they don’t need a Will it is often because they think that the family home will automatically be inherited by their husband or wife. When people decide that they do need a Will it is normally because they are concerned about inheritance and the family home and want to make sure their partner can continue to live at the property.
Will and private client lawyer, Chris Strogen, says that it comes as a surprise to many people that if they jointly own a family home, their share in the property won't necessarily pass by their Will (or under intestacy rules if they decide to not make a Will). Whether your share in the family home passes under your Will or not depends on whether you own the jointly owned property as joint tenants or as tenants in common.
For expert estate planning and help with your Will call our team of specialist Will lawyers or complete our online enquiry form.
In this article we look at:
Joint property ownership and estate planning
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
Whatever the nature or purpose of the property, a quick check can establish if you and your co-owner (or co-owners) own the property as joint tenants or as tenants in common.
The difference in type of joint ownership is very important because property owned as joint tenants is automatically inherited by your co-owners. Jointly owned property that is owned as tenants in common is different. 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 think they don’t need a Will as their house will automatically pass to their partner. That may be the case if you are married or you own the property as joint tenants. It won't be the case if you own the jointly owned family home with your unmarried partner as tenants in common and you don’t make a Will. That is because your share in the property will pass under intestacy rules and your unmarried partner will not benefit under those rules. Your unmarried partner might be able to bring a claim against your estate if they fall within the definition of a ‘dependant’ and there is a lack of reasonable financial provision for them. However, that involves uncertainty and extra expense and worry; all of which can be avoided by taking private client advice, estate planning and getting a Will drawn up.
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 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. You don’t need your co-owner’s agreement or consent to sever the joint tenancy.
If you sever the joint tenancy there are two points to note:
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 make sure that it is still up to date and that it is inheritance tax efficient and 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.
The family home and estate planning options
If your family circumstances are complicated you may be concerned about making a decision on whether to make a Will or review your Will or decide on whether to jointly own your property as joint tenants or as tenants in common.
You may be concerned about leaving your share in the family home to a new partner as you feel that need to balance the needs of your new partner with the needs of your children from a previous relationship. There are a range of estate planning options to help you achieve a balance that you are comfortable with. For example, you could give your partner a life interest in your share in the family home so they can continue to live in the property but if they sell up or pass away then your share of the property will 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 on a regular basis, 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.
Most of us like to think that we have protected our loved ones after our death. That may be by taking out life insurance, paying into a pension that includes a spouse or partner pension if you pass away before your husband or wife , or simply making a Will. However, none of these actions may prevent someone contesting your Will after your death. In this article, private client and Will solicitor, Chris Strogen, looks at how to best prevent someone from contesting a Will.Cheshire Will solicitors
For legal help with making your Will or estate planning call Chris Strogen at Evolve Family Law on 0345 222 8 222 or complete our online enquiry form.Can you contest a Will?
Most people think that if they have made a Will setting out where they want their property and money (referred to as their estate) to go to, that their express instructions in their Will can't be ignored or overridden. However, a Will can be challenged. There are two potential ways a Will can be contested:
An allegation that the Will isn’t valid.
An allegation that 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. This Act applies to estates in England and Wales.
Stopping your Will 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 challenge that the Will isn’t valid.
A Will can be said to be invalid for a variety of reasons, such as:
The Will wasn’t witnessed properly in accordance with current 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 age or dementia or another health condition affecting their ability to make decisions or because they were receiving hospital or hospice care and on strong medication when they decided to make their last 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, such as:
Giving clear advice on how the Will needs to be signed and witnessed, and if you are planning to get the Will witnessed remotely because of COVID-19, clearly explaining if you can do that and how to comply with remote Will witnessing regulations.
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 a Will that is perhaps unusual (for example, leaving their entire estate to someone they have just met when the Will maker has a close and supportive family ) then explaining the potential for the Will to be challenged and helping the Will maker 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 hasn’t been made for a spouse because of a separation. It is important that family law advice is also taken as a spouse can still make a claim unless there is a clean break financial court order in place.
Checking to see if there 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 has capacity. 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 at the time that the Will was made.
Reducing the risk 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 totally honest with your Will solicitor.
Sometimes people are embarrassed to say that they have a child from a previous relationship because of the child’s age and other family circumstances or don’t mention a partner as they don’t want family members to know about their partner. Whatever you tell your Will solicitor is confidential and they can't give detailed advice without all the necessary information about your family and potential claimants. In addition, your Will is private and the contents of your Will don’t have to be disclosed to your family. However, explaining your Will to your family may help them understand why it is fair and, in addition, after death a Will becomes a public record.
A Will solicitor can advise on potential reasonable financial provision claims that you may not be aware could be made. For example, your estate may be left to your second spouse but your child from your first marriage may have a potential claim. Alternatively, you may leave all your estate to your children but a claim is then made by a former husband or wife against the estate as they were in receipt of spousal maintenance payments at the date of your death.
There are lots of things that a Will solicitor can advise on to reduce the risk of claims, including the:
Creation of a trust during your lifetime.
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 IHT planning so your Will and estate planning is as inheritance tax efficient as possible, taking into account your family and personal circumstances.
Cheshire Will solicitors
For legal help with your Will or estate planning call Chris Strogen at Evolve Family Law on 0345 222 8 222 or complete our online enquiry form.
Evolve Family Law offices are in Holmes Chapel, Cheshire and Whitefield, North Manchester but we also offer remote meetings by telephone appointment or video call.Latest From Our Wills Blog:
In this article, private client and Will solicitor, Chris Strogen, looks at what types of assets are subject to probate.
Cheshire Probate Solicitors
For legal help with probate or estate planning call Chris Strogen at Evolve Family Law on 0345 222 8 222 or complete our online enquiry form.What is probate?
Probate is the legal term used for sorting out the financial affairs of the deceased after someone has died. In essence, probate gives the persons dealing with the deceased’s estate the legal authority to sell assets and pay debt and distribute the estate to the beneficiaries of the Will.
If you appoint a private client solicitor in your Will as your executor and trustee they will still need to apply for probate in the same way as if you appoint a family member or friend as your executor. Probate is designed to protect your estate and to make sure that the estate passes to the people named in your Will and only those authorised to do so in your Will (or a solicitor appointed on their behalf) can action the requesting of probate and then administer probate.
Is probate always necessary?
Probate isn’t always necessary. For example, if the estate is very small and the estate doesn’t comprise of property or land, you may not need to obtain a grant of probate. It is best to ask a specialist probate solicitor if a grant of probate will be needed and how long it will take to secure probate.
What assets are subject to probate?
When a person dies their assets are referred to as their ‘estate’. The vast majority of assets are subject to probate. However, some assets may fall outside the estate and therefore not form part of probate. For example , a life insurance policy or pension may not form part of probate, depending on the wording.
If assets were jointly owned by the deceased and another person then they may not form part of the grant of probate if the property was owned by the deceased and the co-owner as ‘joint tenants’. That’s because if a property is owned as joint tenants, on the death of the first co-owner the property passes to the surviving owner. This is referred to as the ‘right of survivorship’. The property therefore does not pass by the Will and accordingly doesn’t form part of probate. The situation is different if property or land is owned by co-owners as ‘tenants in common’.
When making a Will it is important to understand the different types of legal ownership of property and land so you can make the best decision for you on whether to buy as joint tenants or tenants in common and the legal implications of doing so. If you bought a property with a co-owner and want to convert your joint ownership from tenants in common to a joint tenancy or from a joint tenancy to tenants in common, then it is possible to do so.
If an estate includes assets that are overseas, such as a holiday home, it is best to take specialist legal advice on whether those assets will form part of probate.
What do you do if an asset is subject to probate?
If an asset is relevant to probate then it will form part of the estate for the grant of probate. It is the grant of probate that gives the executors (or the probate solicitors appointed by them) the power to:
Discharge any inheritance tax due.
Inform banks and other relevant institutions about the death and close any accounts.
Sell or transfer assets, such as listed shares, a property or land or shares in a family business.
Sort out any leases, such as leases of land or farm or equipment.
Pay any debts.
Distribute the remaining estate in accordance with the Will.
Cheshire Probate Solicitors
For legal help with probate or with a Will or estate planning call Chris Strogen at Evolve Family Law on 0345 222 8 222 or complete our online enquiry form.
Evolve Family Law offices are in Holmes Chapel, Cheshire and Whitefield, North Manchester but we also offer remote meetings by telephone appointment or video call.Latest From Our Wills & Probate Blog:
Private client solicitors will tell you that enquiries are rising about whether Wills can be challenged by family members and loved ones. In this blog we look at the grounds for contesting a Will.Private Client and Contesting a Will Solicitors
Evolve Family Law specialises in Will preparation and advising on whether you have the grounds to contest a Will. For advice on contesting a Will call Chris Strogen at Evolve Family Law on 0345 222 8 222 or complete our online enquiry form. Our offices in Holmes Chapel, Cheshire and Whitefield, Manchester are open with social distances measures in place for face to face meetings, however an appointment is required. We also offer remote meetings by appointment by video call or telephone for those who prefer not to travel.
Can I contest a Will?
When a family member passes away it is a difficult time. Your grief and distress can be increased if you don’t think that your loved one’s Will is correct. If that is the case, then it is best to take legal advice on the Will and whether you have the grounds to contest it. Our contesting a Will solicitors 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’ve been left out of a Will or you haven’t been left as much as you need and you were dependant on the deceased, you may be able to bring a claim against the estate. This is different to challenging a Will on the above grounds.
Contesting a Will because of lack of testamentary capacity
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 solicitors) then their Will isn’t valid. That’s because you must have testamentary capacity in order to make or change your 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 executing the Will doesn’t have mental capacity at the time that their Will is executed then, if the Will is successfully challenged, the estate will pass and be administered in accordance with their most recent valid Will instead. If the deceased hadn’t made an earlier Will then their estate will be divided under the rules of intestacy. 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. As a result of the Covid-19 pandemic the government has introduced temporary remote witnessing of Wills if certain criteria are met. That has raised additional concerns if the Will maker is vulnerable. If the Will wasn’t executed properly then the Will is invalid and 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 then 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 only met shortly prior to their death and the deceased had always said that they would leave their estate to family members or friends. Any challenge to a Will on the basis of undue influence has to carefully look at what evidence there is of undue influence, other than suspicion on the family member’s part, because to contest a Will on the basis of undue influence you need to be able to say 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 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 on one of the above grounds because you have concerns about a Will then it is best to take legal advice. That is because challenging a Will can create tensions between family members or bad feeling. A contesting a Will solicitor can assess the grounds for challenging the Will, the evidence and your options.
How do you contest a Will?
If you want to contest a Will it is important to take action and obtain legal advice as soon as you are able to do so. 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 that 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 are not able to 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 and that’s why it is best to take specialist legal advice before starting the litigation. That way you can make informed choices on whether pursuing the court case is in your best interests.Private Client and Contesting a Will Solicitors
Deciding whether or not to challenge a Will isn’t an easy decision to make. For sensitive, pragmatic advice on contesting a Will call Chris Strogen at Evolve Family Law on 0345 222 8 222 or complete our online enquiry form. Our offices in Holmes Chapel, Cheshire and Whitefield, Manchester are open with social distances measures in place for face to face meetings, however an appointment is required. We also offer remote meetings by appointment by video call or telephone for those who prefer not to travel.Latest From Our Wills Blog:
Nowadays we like to think that every type of relationship is valued and that whatever the nature or status of our relationship we are all treated fairly and without any form of discrimination. If you are in an unmarried relationship the world has changed from a generation ago where there was still a social stigma if you were unmarried or had children ‘out of wedlock’. Although the attitude of society has changed to unmarried relationships when it comes to the law on Wills and estate planning the law hasn’t caught up. That’s why it is essential that if you are in an unmarried relationship you understand why you and your partner each need a Will.Manchester and Cheshire Will Solicitors
Evolve Family Law specialise in family law and private client law advice. For advice about a new Will or changing your existing Will call Evolve Family Law on 0345 222 8 222 or complete our online enquiry form. Evolve Family Law have offices in Whitefield, North Manchester and Holmes Chapel, Cheshire but our private client and Will solicitors are experienced in working remotely and offer meetings by telephone appointment or video call.Wills and married and unmarried relationships
When it comes to Wills and married and unmarried 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 certificate 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
The right to bring a claim against your husband, wife or civil partner’s estate if they leave a Will but the Will doesn’t make reasonable financial provision for you
Inheritance tax concessions as a spouse or civil partner
Capital gains tax exemptions on transfers between spouses and civil partners.
If you are in an unmarried relationship then on your partner’s death:
If your partner dies without a Will and intestacy rules apply then an unmarried partner will not get an automatic share of the estate. That means you could be left with nothing unless you are able to make a court claim against the estate
An unmarried partner can only bring a claim against the estate of their partner if the partner died intestate without leaving a Will or they left a Will but reasonable financial provision wasn’t made for them in the Will and they fall within one of two categories, namely, a person who for two years prior to the death of their partner was living with the deceased as spouse or civil partner although not married or if the unmarried partner was being maintained by the deceased prior to the deceased’s death. That means an unmarried partner has to either prove a two-year relationship or dependency on the deceased
If an unmarried partner receives an inheritance or lifetime gifts there are no specific inheritance tax or capital gains tax exemptions or allowances.
As cohabitation is an increasingly popular form of relationship and because many adults in the UK don’t have a Will there are many people in unmarried relationships who 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 as, in the law, you are either treated as married or unmarried.
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 and 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 his or her estate to you as you are in an unmarried relationship 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. The legacy can only be challenged if another person successfully brings a claim against the estate, for example, saying that your partner did not have capacity to make the Will at the time that the Will was executed by them 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 Wills so that you and your family are protected in case your unmarried relationship is brought to an end by the death of your partner.Manchester and Cheshire Will solicitors
Evolve Family Law specialise in family law and private client law advice. For advice about a new Will or changing your existing Will call Evolve Family Law on 0345 222 8 222 or complete our online enquiry form. Evolve Family Law have offices located in Whitefield, North Manchester and Holmes Chapel, Cheshire but our private client and Will solicitors are experienced in working remotely and are offer meetings by telephone appointment or video call.Latest From Our Wills Blog:
If you aren’t a Cheshire Will solicitor you may not know where to start with making your Will. In this blog we look at how to make a Will, something that we should all do to protect our loved ones.
It is easy to keep putting off making a Will because you have too much to do or you aren’t sure what to put in your Will but a Will is something that we should all have. Covid-19 has emphasised the need to make a Will although some people believe it isn’t possible to make a Will if you can't see a solicitor because of lockdown or the Covid-19 tier system. Most private client solicitors are working remotely so if you do want a Will writing for you then coronavirus shouldn’t put you off as your Will instructions can be taken over the phone or by skype to ensure that you have an up to date Will that reflects your wishes.Cheshire Will solicitors
Evolve Family Law specialises in Will preparation. For advice on making a Will or changing your existing Will call Chris Strogen at Evolve Family Law on 0345 222 8 222 or complete our online enquiry form. Evolve Family Law has offices in Holmes Chapel, Cheshire and Whitefield, Manchester and we also offer remote meetings by telephone or video call appointment.Covid-19 - can I still make a Will?
Nowadays Covid-19 comes into most conversations and it is no different when private client Will solicitors are asked questions about making a Will. Many people assume that if they are shielding or social distancing that they’ll have to wait to make or change their Will but that certainly isn’t the case. If you are not comfortable with an office appointment then the Will solicitors at Evolve Family Law can arrange either a telephone or video appointment, whatever suits you best.
During any remote appointment our Will solicitors take the same care and pay the same attention to detail to make sure that you understand your Will options and ensure that your Will leaves your estate to your loved ones.
You may also be concerned about how your Will can be completed if you are trying to maintain social distancing or comply with government regulations. We can talk you through how your Will can be executed, including the option of having your Will witnessed remotely. That’s because the government has authorised the remote witnessing of Wills on a temporary basis and provided safeguards are met.
What do I need to make a Will?
You don’t need anything to take the first step of making a Will as a Will solicitor can either talk you through the information they need to prepare the Will for you or alternatively, if you prefer, they can send you a Will questionnaire for you to complete.
The main things that a Will solicitor needs to know in order to advise you on your Will and prepare it for you are:
Roughly how much is your estate worth - you don’t need to get anything valued as all your Will solicitor needs is a very approximate ball park figure so they know if inheritance tax will be relevant to your estate
Whether all of your assets are in the UK - if you own property overseas then you may need another Will to cover your overseas based property
Whether any of your assets are jointly owned - if you own property jointly, for example, with a wife, husband or civil partner, then your share in the property may pass outside of your Will unless you sever the joint tenancy
Whether you have any dependants - a dependant could be a former husband or wife who is receiving spousal maintenance from you, a child receiving child support, an adult child who is financially reliant on you or your cohabitee or partner. Whilst you can leave your estate to who you want as there is no legal requirement to leave all or a share of your estate to your dependants or family members, a Will solicitor can advise you on the prospects of a dependant trying to contest your Will and how to reduce the risk that your Will might be contested
Whether you have any children or planned beneficiaries under the age of eighteen - if you do then you may want to consider the appointment of testamentary guardians in your Will for your children. You will also need to consider leaving money in trust for your children or minor beneficiaries
The planned executors of your Will and beneficiaries- if you haven’t made any final decisions about your choice of executors (the people named in your Will as responsible for administering and distributing your estate) then don’t worry as your Will solicitor can discuss your options, including the appointment of family members, your solicitor or another professional as executor. When it comes to beneficiaries your Will solicitor can talk you through your options and make sure that your Will is as ‘future proofed’ as possible so that if ,for example, you want to leave all your estate to your husband or wife or a share of your estate to an older sibling there are ‘substitution gifts’ in your Will. That means that if your spouse predeceases you their legacy is shared, for example, between your children or in the case of your sibling between your nephews and nieces. Alternatively the gift can fall back into your estate and form part of the legacy to your residuary beneficiary or beneficiaries.
When to make a Will
Will solicitors say that it is never too early to make a Will or, if you have an existing Will, it is equally important to make sure that the Will is up to date and still reflects your wishes.
At any important life event you should consider making or changing your Will. Life events include:
Buying your first house – whether on your own or jointly with a partner
When you get engaged to marry or enter a civil partnership
When you sign a prenuptial agreement
When you have children or adopt
If you separate or divorce from a husband, wife or partner
If you form a new relationship or remarry
If you suffer ill health
If you receive a legacy or inheritance.
There are many other scenarios when you should consider making or changing your Will, such as the death of a beneficiary or an executor to your Will. Making a Will can be a very positive experience for you because:
It makes you feel that you have taken steps to protect family members and loved ones
You can say who you would like to administer your estate through the appointment of executors of your Will
You can safeguard young children with the appointment of a testamentary guardian
You can use your Will and estate planning to minimise your estate’s liability to inheritance tax.
How to make a Will
The easiest way to make a Will or to change an existing Will is to speak to an experienced private client and Will solicitor. They can look at your goals and objectives and work out how best to achieve them. This may include:
Inheritance tax planning
Trusts created in your Will and the flexibility and guidance issued to your trustees with discretionary trusts
The structure of legacies and the disposal of your residuary estate
Contingency legacies so, for example, a grandchild or children, will receive a legacy instead of their parent if their parent sadly passes away before you do so. Carefully drafted contingency legacies means that your Will doesn’t have to keep being rewritten on the birth of a new grandchild
How to try and ensure that the Will isn’t challenged or contested by a dependant leading to litigation against your estate. This can be achieved by carefully assessing what, if any, dependency claims can be brought against your estate and how to minimise the risk of a successful claim.
How long does it take to make a Will?
The role of a private client and Will solicitor is to make the Will process as simple for you as possible. It is possible to make a Will in a matter of hours but you may, depending on your family circumstances, want to reflect on private client and Will advice before finalising your Will.
Your Will isn’t effective until it is executed. That involves your signing your Will witnessed by two witnesses. As a result of the Covid-19 pandemic the government has temporarily relaxed the rules on witnessing Wills and now allows for a Will to be remotely witnessed to ensure that you can still execute a Will whether or not you are in a Covid-19 related lockdown.
The best way to make a Will is to take the step of picking up the phone and speaking to a friendly and approachable private client and Will solicitor about your options so that you can achieve a well drafted Will that protects your family and gives you peace of mind.Cheshire private client and Will solicitors
For advice on making or changing your Will or estate planning call Chris Strogen at Evolve Family Law on 0345 222 8 222 or complete our online enquiry form. Evolve Family Law has offices in Holmes Chapel, Cheshire and Whitefield, Manchester but an appointment at the office isn’t needed to make a Will as Evolve Family Law offers remote meetings by either telephone or video call appointment.
Latest From Our Wills Blog:
A power of attorney authorises nominated members of your family or trusted friends to act on your behalf if you are not capable of making your own decisions because you lack capacity to do so. Many people don’t think that they need a power of attorney but accidents or sudden ill-health can happen to us all so it is sensible to put a power of attorney in place so it is there if you need it.Cheshire and Manchester Private Client and Power of Attorney Solicitors
Evolve Family Law specialises in Will preparation and powers of attorney. For advice on making a power of attorney or a Will call Chris Strogen at Evolve Family Law on 0345 222 8 222 or complete our online enquiry form. We have offices in Holmes Chapel, Cheshire and Whitefield, Manchester but offer remote meetings by appointment by video call or telephone.What Is a Health and Welfare Power of Attorney?
There are two types of power of attorney and you can chose to have both or just one type, depending on your preferences. The health and welfare power of attorney gives authority to your nominated family or trusted friends (who are referred to as attorneys) to make decisions about your care needs and medical treatment.
Your attorneys are only able to act on the power of attorney if you are not able to express a view on your medical treatment or care needs because you lack capacity. Lacking capacity is something that is assessed by doctors and could occur, for example, if you are in a coma after an accident or have had a severe stroke or are on a ventilator.
What is a property and financial affairs power of attorney?
A property and financial affairs power of attorney authorises your nominated family, friends or professional advisors (who you appointed as your attorneys in the power of attorney document) to manage your property and financial affairs. For example, if you lack capacity to manage your own financial affairs it could be very helpful to have a trusted person ensure that all your household bills or care home fees are paid from your bank account or to arrange the sale of your family home if you need to downsize to a sheltered apartment or are moving to live with a family member.
A property and financial affairs power of attorney can either be set up so that it can only be used if you lose capacity or at any time, depending on your preferences. For example, if you have capacity to make your own decisions but spend a lot of time overseas it can be helpful to have an active property and financial power of attorney so your attorneys can sign paperwork on your behalf.
Who should you appoint as an attorney in a power of attorney?
Your choice of attorney may depend on the type of power of attorney you are executing. If the power of attorney is a health and welfare power of attorney you may want to choose close family members or friends who know you well and would know what medical choices you would be likely to make if you had the capacity to make your own health and welfare decisions.
If you are planning to execute both powers of attorney then you can choose different attorneys for each document as you may think that different friends or family members would be better suited to manage your property and financial affairs.
If you decide, at a later date, that you want to change an attorney then you can do so provided that you have the capacity to change the document. That’s why it is important to review your powers of attorney when you are reviewing your Will or your insurance provision to make sure changes don’t need to be made.
How long does a power of attorney last for?
A power of attorney is indefinite in length and will last until you cancel it. You can cancel a power of attorney at any stage provided that you have legal capacity to do so. That means that if you execute a power of attorney whilst in your twenties nominating your husband, wife or siblings to be your attorneys then the power of attorney document may never need changing. Obviously if you separate or divorce or one of your attorneys loses capacity or passes away then you can change the power of attorney at that stage.
When is a power of attorney used?
A power of attorney has to be registered with the Office of the Public Guardian but a health power of attorney won't be used unless you lack the capacity to make your own decisions. Any loss of capacity to make your own decisions could be temporary or permanent, depending on the nature of your condition. A property and financial affairs power of attorney could be set up so it is only used if you lose capacity or so that the power of attorney can be used by your attorneys, depending on your preferences.
Is a power of attorney necessary?
If you lack capacity then a power of attorney makes it a lot easier for your friends and family to help and support you. Sadly, loss of capacity can happen quickly (because of an accident) or slowly (without our realising that we are losing our capacity) and that’s why it is sensible to sign a power of attorney so that you have the power of attorney in place when or if you need it.
If you wait and lose capacity then you can't sign a power of attorney at that stage. In addition your relatives can't sign a power of attorney for you. If you become incapacitated without a power of attorney then your family or friends can make an application to the Court of Protection for a deputy to be appointed to look after your affairs.
The drawback of not executing a power of attorney is that a court application for the appointment of a deputy costs more in legal fees than signing a power of attorney. In addition if you lose capacity your attorneys can immediately help you through the authority given to them in the power of attorney document. If family or friends have to make an application to court for a deputy to be appointed there is likely to be a delay between the Court of Protection application and the appointment of the deputy.
How much does a power of attorney cost?
At Evolve Family Law we believe it is important to be upfront and transparent about legal fees so we publish a price guide on our website. That way you have the confidence of knowing the price of a power of attorney document before calling our friendly power of attorney solicitors.
If you want Evolve Family Law to prepare a power of attorney for you or a relative (health and welfare or property and financial) the cost will be £240 inclusive of VAT. If you want us to prepare both types of power of attorney for you then the cost is £450 inclusive of VAT.
If you are married or in a civil partnership and you both want a power of attorney (health and welfare or property and financial) then the cost will be £450 for both of you. If you and your spouse or civil partner both want both types of power of attorney (health and welfare and property and financial) the cost is £720 inclusive of VAT.
There are registration fees payable to the Office of the Public Guardian for each power of attorney that has to be registered with the Office for the Public Guardian.
Although Evolve Family Law charge a fixed fee for your power of attorney you will get bespoke legal advice from a specialist private client and power of attorney solicitor that looks at your personal situation for a fee that is simple and understandable. Manchester and Cheshire Private Client and Power of Attorney Solicitors
For specialist private client advice on your power of attorney or making or changing your Will or estate planning call Chris Strogen at Evolve Family Law on 0345 222 8 222 or complete our online enquiry form. Evolve Family Law has offices in Holmes Chapel, Cheshire and Whitefield, Manchester but we also offer remote meetings by appointment by video call or telephone.Latest From Our Family Finance Blog:
If you’d asked a Will solicitor back in late 2019 if there would be changes made to the 1837 Will Act most experienced Will lawyers would have said no. However, Covid-19 is bringing about changes to how Wills are witnessed with some saying that it’s taken a global pandemic to change a law made in the 1800’s. With news of local Covid-19 lockdowns being imposed in Greater Manchester and parts of Lancashire and fears that the localised government Covid-19 related constraints will be extended into Cheshire the changes are broadly welcomed by Cheshire Will solicitors.Cheshire online Will solicitors
If you need advice about making a Will or changing your current Will then the Holmes Chapel based Wills and estate planning team at Evolve Family Law can help you. Call us on 0345 222 8 222 for a no obligation chat or complete our online enquiry form and we can set up a telephone appointment, video conference, or Skype call for you.
Witnessing a Will
A Will has to be witnessed in accordance with the law. If the Will isn’t witnessed properly then the Will may be contested. If the Will is found by the court to be invalid as it wasn’t witnessed properly then your estate could pass under the provisions of an earlier valid Will or pass under intestacy rules. That means that your family, loved ones or nominated charity may not end up with a share of your estate. That’s why Will solicitors say it is essential that Wills are executed and witnessed properly.
Under the 1837 Wills Act a Will has to be witnessed by:
The witnesses shouldn’t be beneficiaries of your Will
The witnesses should be present when you sign the Will and see you sign the Will.
The Will witness requirement meant it was tricky during the height of the Covid-19 pandemic for people to arrange for their Wills to be witnessed especially when Will solicitors were forced to work online because of the government imposed lockdown and the difficulty of getting neighbours to witness Wills whilst practising safe distancing or shielding.
The remote witnessing of Wills
To help people wanting to put their personal and financial affairs in order during the Covid-19 outbreak the government has said that it will change the law to allow Wills to be witnessed remotely for the next two years or longer if required.
The government recognises that there is a danger that the remote witnessing of Wills could result in fraud or abuse of the elderly or vulnerable and has therefore issued guidelines to Will solicitors and to the general public on the remote witnessing of Wills.
For those of you who have already executed your Will and are worried that the execution was carried out correctly and is valid then the best thing is to speak to a specialist Will lawyer. The good news is that the government has said that the Will witnessing reforms to allow remote witnessing of Wills is to be backdated to 31 January 2020 provided that:
The Grant of Probate hasn’t already been issued
The application is already in the process of being administered.
The new law will remain in place as long as necessary and will apply to Wills made up to two years from when the legislation comes into force (the 31 January 2022) but this period could be shortened or extended if deemed necessary by the government.
It should be noted that although the government intends to change the law to allow remote witnessing of Wills the government has said that the use of video technology should be a last resort and people making or changing their Will should continue to arrange physical witnessing of the execution of their Will where it is safe to do so.
Government guidance on making Wills using video-conferencing
The government guidance on the remote witnessing of Wills applies to both Wills and codicils (a supplementary document that is sometimes used to make minor changes to a Will rather than creating a totally new Will).
The guidance reminds Will solicitors that a Will or codicil isn’t valid unless:
The Will or codicil is in writing and
The document is signed by the testator or by some other person in the testator’s presence and at their direction and
The testator has capacity to make the Will
The testator intended by their signature to give effect to the Will and
The testator’s signature was made or acknowledged by the testator in the presence of two or more witnesses who were present at the same time and
The two witnesses attest and sign the Will
The witnesses have a clear line of sight and can see the testator sign the Will (even if their line of sight is through a window or in light of the planned law change remotely through video conferencing).
Video-witnessing or remote witnessing of Wills
If a Will is witnessed remotely then the same rules apply to the valid execution of a Will save that the witnesses witness the Will being signed remotely. This doesn’t have to be by video conferencing as it could, for example, take place over Zoom or Facetime.
The important point is that the person making the Will and their two witnesses each have a clear line of sight of the signature to the Will in real time. It is best that the remote signing and witnessing process should be recorded and the recording retained in case the Will is challenged.
The original Will should be in the possession of the testator when it is signed and the signature witnessed remotely. However, the two remote witnesses still need to sign the Will so the Will should then be taken to the two witnesses for them to sign, preferably within twenty four hours unless a longer time period is unavoidable. When the witnesses sign the Will the testator should ideally remotely see the two witnesses sign the Will and acknowledge that they have seen the two witnesses sign. As part of the remote witnessing process the Will should be held up so the Will can be seen.
The government is making the changes to the law on witnessing Wills as the government recognises the importance of writing a Will and the peace of mind that a Will can give to both the testator and their loved ones.Online Cheshire Will and Estate Planning Solicitors
For information and advice on writing a Will or estate planning call the Will and estate planning solicitors at Evolve Family Law on 0345 222 8 222 for a no obligation chat or complete our online enquiry form. We will arrange a telephone appointment, video conference or Skype call to discuss how we can help you with writing a Will or changing your existing Will.
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You can write your own Will but Cheshire private client and Will solicitors say that the better question to ask is ‘’should you write your own Will?’’ . That is because going it alone, without expert Will advice, can have serious unintended consequences for your friends and family. In this blog we look at some of the common problems encountered with do-it-yourself Wills.
Online Cheshire Will Solicitors
If you need advice about making a Will or changing your current Will then the Holmes Chapel based Wills and estate planning team at Evolve Family Law can help you. Call us on 0345 222 8 222 for a no obligation chat or complete our online enquiry form and we can set up a telephone appointment, video conference, or Skype call for you.Do I need a Will?
We all need a Will, whatever our personal or financial circumstances, although it is fair to say that some people need one more than others. For example:
If you have a complicated family set up with children from different relationships or step-children
You are getting married
You are in a cohabiting or non-married relationship
You are going through a separation or divorce
You own a business
Your estate will be subject to inheritance tax unless you carry out estate planning
You have financial dependants, such as young children or a former husband or wife that you continue to pay spousal maintenance to
You want to make specific bequests or the intestacy provisions (if you die without a Will) would create a result that would not be what you wanted to do with your estate
You want to leave money to charitable causes.
Having acknowledged that they need a Will some people are then tempted to write one themselves. Their philosophy appears to be ‘’how hard can it be to put down on paper what will happen to your money when you die?’’ The answer is that it can be surprisingly easy for someone to prepare a Will that either isn’t legally valid or doesn’t actually say what they meant to say.
Common problems with ‘’do-it-yourself Wills’’ include:
A Will is witnessed by one person. Two people need to witness the Will being signed. If they don’t do so then the Will isn’t valid
One or both of the witnesses to the signing of the Will didn’t actually see the Will maker sign his or her Will. If the Will is challenged then the failure to properly execute the Will could make it invalid
The Will is witnessed by two people but one of the witnesses (or their husband, wife or civil partner) is left a share of the estate or a legacy in the Will. Whilst the Will is legally valid but the gift to the beneficiary (or their spouse or civil partner) is void
The Will leaves the family home or business to a beneficiary but at the date of death the family home or business has already been sold. The beneficiary isn’t entitled under the terms of the Will to the sale proceeds of the family home or business. The beneficiary may therefore end up with nothing whilst the person writing the Will thought there were leaving their most valuable assets to a named beneficiary
After making various specific gifts to beneficiaries the Will doesn’t say what will happen to the balance of the estate, referred to as the residue. That could result in a partial intestacy with some of the estate passing to unintended beneficiaries under intestacy rules
The Will does not say who will receive a gift or the residue estate if the named beneficiary dies before the person writing the Will. The gift won't go to the nearest relative of the intended beneficiary but will fail. This will increase the size of the residuary estate. If the person who is gifted the residue of the estate passes away before the Will maker and there is no substitute beneficiary named in the Will then the residue of the estate will pass in accordance with the intestacy rules
The Will maker does not carry out any inheritance tax planning as part of their Will preparation. This could mean the difference between the estate paying no inheritance tax or thousands of pounds in inheritance tax
The Will writer assumes that their jointly owned family home or their pension fund will pass by their Will but that isn’t necessarily correct because, for example, the home is owned as joint tenants and the joint tenancy was never severed or the pension scheme rules says that the pension fund passes by nomination rather than through the provisions in a Will.
These are just a few of the things that can go wrong when you chose to write your own Will. Sadly, it is often not until it is too late and someone has passed away, that friends and family find out about the unintended consequences of a badly prepared do-it- yourself Will.
It is therefore best to take advice from a Cheshire Will solicitor when contemplating drawing up your own Will. If you are concerned about the cost of a Will then a solicitor can talk you through the cost. At Evolve Family Law we publish a price guide for the services we provide that includes the cost involved in preparing a Will for you. Many realise that getting an expert to write a Will not only isn’t that expensive but gives the security of knowing that your loved ones are properly protected.
Why use Evolve Family Law to write your Will?
We think the question ‘’why use Evolve Family Law to write your Will?’’ is best answered by quoting the words of two recent clients of Will solicitor, Chris Strogen. The clients said:
‘’Thank you so much for a great service, absolutely first class’’.
‘’Very helpful and friendly, effective and efficient. Definitely recommend’’.Online Cheshire Will and Estate Planning Solicitors
For advice on a Will or estate planning call the Will and estate planning solicitors at Evolve Family Law on 0345 222 8 222 for a no obligation chat or complete our online enquiry form and we will arrange a telephone appointment , video conferencing or Skype call to discuss how we can help you.Latest From Our Family Finance Blog: