Question:

My elderly mum died recently leaving the family home, which was in her sole name as my dad died many years ago, to me and my older half-brother. He is my mum’s son from her first marriage, and is now 65, single and childless.

He has had, since he was a toddler, little or no contact with his genetic dad. I don’t know if this man is alive but I know he did go on to have other children – so my brother has at least one other half-sibling. Although again there has been no contact between them and my brother.

My brother has been living in my mum’s house for several years, since she went into a home, and wants to stay there. I’m happy for this to continue as I do not need my share of the property now. But I do want to make sure his share passes to me when he dies, as the quid pro quo for allowing him to stay there without paying anything.

He says he has made a will that leaves everything of his to me but it is apparently a DIY one, and I’m sceptical that it is legally robust. He is highly strung, and likely to respond badly if I quiz him about it.

If I do nothing and his will turns out not to be worth the paper it is written on, what are the chances of his half of the property going to someone else? And what other difficulties might I experience?

Answer:

It is always hard when a loved one dies and grief and inheritance issues can put strain on family relationships. Agreements made whilst grieving are often regretted or forgotten as time passes.

I do think you should make sure that your agreement with your half-brother is sorted out even if he finds it hard to deal with. You could always try to sell it to him along the lines of wanting to give him security and protection too.

It is much better to bite the bullet and deal with things now rather than hoping that your brother will do the right thing in the future. 

Leaving his share of the house to you by will is not the only option and don’t forget, you do have the upper hand now because you are the one who is agreeing not to sell the house and have your share immediately! You will also need to talk about practicalities such as who is going to pay for repairs, insurance, and maintenance.

It is important as well for you to have a valid will which makes clear who would inherit your share of the house, as you might die before your brother.

That is yet another reason to get matters straight now, as you don’t want to risk bequeathing a messy situation to your own heirs.

How can you ensure you inherit your share of the house, without relying on your brother’s will?

You could agree to change the terms of your late mother’s will and say that the whole house is put into a ‘Trust’ instead. Your brother can be given the right to live there for the rest of his life and you get the house when he dies.

A slightly different way of doing the same thing if your brother doesn’t like the idea of not actually owning a share of the house, would be to do a ‘declaration of Trust’ over it.

Again, although you both stay as legal owners, your brother has a right to live there and you have the right to the house when he dies.

You will both need to agree to this and do make sure you seek advice from a solicitor who specialises in Trusts so that you both understand all the pros and cons and ensure it is done properly.

How should you set up ownership of the house, if you decide against a Trust?

If you haven’t already got one, you will need to apply for a grant of probate for your late mother’s estate and you will need to update the title deeds of the house.

If you’re not going down the Trust route, you will need to decide whether you and your brother want to own the house as ‘joint tenants’ or ‘tenants in common’. These are technical terms and it is important you understand which one to go for and that your solicitor is told.

If you own the house as joint tenants then on the death of the first of you, the survivor will automatically be left owning the whole house even if their will says something different.

If you own it as tenants in common you both own separate shares which will then pass in line with what your wills say.

Joint tenants could work well for you provided your half-brother died first but of course, if you were to die first it would all pass to him.

We don’t have a crystal ball and I wouldn’t normally suggest anyone should take that risk!

 What should you ask your brother to do about his will?

If you decide to own the house as ‘tenants in common’, your brother needs to make a will which leaves his share of the house to you. Wills are technical documents and they need to be signed, dated and witnessed correctly to be valid. If he uses the wrong type of words to leave you his share in the house, it might fail and you might end up with nothing.

Far too much can go wrong with DIY wills and I strongly recommend you and he get advice from a solicitor who specialises in drafting wills and Trusts. 

If you are looking for a solicitor, try to find one who is a member of the Society of Trusts and Estate Practitioners. They will have the letters TEP after their names.

What are the risks of depending on your brother’s will?

You have to understand that your brother has the right to change his will at any time and does not have to tell you if he does so. Also, if he marries in the future, any will would automatically be cancelled.

If your brother doesn’t make a will or his DIY will is invalid or cancelled, the intestacy law will decide how his estate is shared. This sets out a strict list of relatives who will inherit and the order they inherit in is often surprising.

On the basis that your brother is not married or in a civil partnership at the date of his death and has no children of his own, the first person to inherit would be his father. You have said that you do not know he is alive but if he is, you could end up with nothing.

If his father has died, and assuming that your late mother did not have other children with her first husband, the next group of people to inherit are all the half-siblings. 

You have said that your brother’s father did have other children and so they, as well as you, will all inherit an equal share of your brother’s estate, whether he knew them or not.

I am afraid that if the will turns out to be not worth the paper it’s written on you could end up receiving nothing at all or sharing his half of the house with his other half-siblings. Likewise, if he changes his will or remarries or even if he simply loses his will, you could end up with nothing. 

What is the safest approach to ensuring you get your share of the house?

The only sure fire way of guaranteeing the outcome is to either own the property outright yourself or make sure your interest is protected by way of a Trust. 

It’s probably time to have that conversation with your brother. Good luck!

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

In light of the seemingly inevitable escalation towards social isolation for our most vulnerable clients, we want to take this opportunity to reach out and reassure you that we can continue business as normal, although with some 21^st century input.

In the current circumstances, we know that people are becoming increasingly concerned about putting Wills into place or reviewing and updating their existing Wills, yet may be cancelling or not making appointments due to the advice to limit unnecessary social contact or the need to self-isolate.

We usually find that our clients get peace of mind once their affairs are in order and no doubt you will appreciate how important an up to date Will can be during this challenging time.

Despite the need to work from home or to self-isolate, our IT infrastructure allows us to continue providing a full legal service to our clients.  Whether this is by way of a simple telephone conversation, or one of the many video conferencing facilities available, our specialist team of Solicitors can still assist.

We have a Business Continuity Programme in place that allows us to progress existing matters and take on new instructions so a face to face appointment is not, at this time, necessary.

We are taking all possible steps to ensure our staff and our clients remain healthy and safe and so we will be conducting all client meetings remotely from now on unless there are exceptional reasons when we will do our best to accommodate the client’s individual needs.

We are dedicated to assist where we can. If you would like to obtain advice or guidance regarding the preparation of a Will, Lasting Powers of Attorney or would like assistance with a Deputyship Application, please contact our Private Client team on wills@franklins-sols.co.uk or call Northampton: 01604 828282 / Milton Keynes: 01908 660966.

A recent article prepared by STEP (The Society of Trust and Estate Practitioners) highlights the top 10 issues that families may face when a loved one passes away without leaving a valid Will. These issues are summarised as follows:

1. Your estate may be distributed under the intestacy rules, which may be undesirable;
2. Step-children and unmarried partners may be overlooked;
3. Your partner may be left homeless;
4. Your children may be left with no legal guardian;
5. Your family may face additional distress at a difficult time;
6. Your money may go to the government rather than people you want it to go to;
7. Family disputes may arise;
8. Legal action may be required, which can be very expensive;
9. Your family may face a higher bill for inheritance tax;
10. The law is regularly changing, and it may not favour your family.

The above only highlights ten of the issues that can be caused by not having a Will in place, but there are many more.

We understand that making a Will can be a worrying process and often something that many people do not want to think about, but here at Franklins we believe that friendliness and approachability are crucial and with our solicitors expertise, putting a Will in place does not have to be a daunting prospect.

For further information, please see the full article published by STEP.

For more information, advice or guidance on preparing or updating your Will, please contact our Wills team on either 01908 660966 or 01604 828282 or by email on wills@franklins-sols.co.uk 

Sometimes there is a huge gap between accepting a marriage is at an end and doing something about it. One factor that might prevent one spouse from “getting the ball rolling” with the divorce is because the family home is in your spouse’s sole name.

If you tell your spouse you want a divorce – can they sell the house from underneath you or evict you?

 Actually, the answer is no.

You do have family home rights which would prevent your spouse from selling the family home without you knowing, re-mortgaging or preventing you from returning to the family home if you have already left.

The legal position is that you have to register your Matrimonial Homes Rights with the Land Registry. However you are not obliged to notify your spouse that you are going to do this. The Land Registry do that automatically but only once your Matrimonial Rights have been registered.

Obtaining further advice

There is more to it in terms of the legal position and so it is essential to obtain proper legal advice on such matters. But, if you do find yourself in this situation, knowing that you do, in fact, have some rights will hopefully give you the confidence you need to pick up the phone to “get that very difficult ball rolling”.

For more information or guidance please contact our Family Law team who will be happy to help on family@franklins-sols.co.uk or 01604 828282 / 01908 660966

Have you thought about what would happen to your business if you became unable to make decisions because of an accident or unexpected illness? Imagine what would happen if creditors couldn’t be paid or contracts couldn’t be signed. 

Many businesses would be crippled by such inactivity and, worse still, creditors might pursue personal assets such as your home.

How could a LPA (Lasting Power of Attorney) help your business?

The way to protect your business and your personal assets is by the key members making powers of attorney. A power of attorney is a document whereby you appoint someone you Trust to make decisions on your behalf in the event that you cannot make decisions yourself, for instance if you are out of the country or if you are ill.

A lasting power of attorney (LPA) is a special type of power of attorney which continues even if the person making it loses mental capacity. This makes it extremely useful to protect your business against the risk of someone becoming mentally incapacitated by a sudden event such as an accident or a stroke.

Your attorneys cannot use the LPA to make business decisions for you until the LPA is registered with the Court of Protection. This is to safeguard against decisions being made without your knowledge. If your circumstances change, you can revoke your LPA and make a new one.

The risks if LPAs are not in place

When the key members of a business do not have LPAs in place, the court has to appoint a deputy to make management decisions on behalf of the incapacitated person. This process takes several months, during which time many businesses struggle to survive and go into liquidation. Would yours?

If you would like more information about protecting your business and/or personal affairs through a LPA, please contact our team by emailing wills@franklins-sols.co.uk or calling 01908 660966 / 01604 828282 where a member of our team will be able to offer advice ad guidance.

The Office of Public Guardian (OPG) has announced that it will be providing refunds for Powers of Attorney that were registered between 1 April 2013 and 31 March 2017.

The OPG estimates that there are over one million refunds due, but with the number of claims made to date only totalling 158,000, the chances are that you or someone you know who is entitled to a refund, hasn’t yet claimed it.

How can you make a claim?

A claim can be made online www.gov.uk/power-of-attorney-refund. Each donor only needs to make one claim and the OPG will find all power of attorney application fees paid by them.

Claims can also be made over the phone on 0300 456 0300 (select option 6) which is a dedicated refunds service helpline.

How much is my claim worth?

The exact amount of your refund will be dependent upon when your Lasting Power of Attorney was registered but the OPG advises they range from £34-54 per Lasting power of Attorney.

For further information please visit: www.gov.uk/power-of-attorney-refund.

For further advice or guidance contact our Wills team on wills@franklins-sols.co.uk or call Northampton: 01604 828282 / Milton Keynes: 01908 660966. Where our experienced and friendly team will be able to provide answers to your questions or arrange an appointment with one of our Solicitors.

A pre-nup (short for pre-nuptial agreement)  is a document that can be drawn up prior to marriage to record a couple’s intentions as to what should happen to their assets and income in the unfortunate event that the marriage fails.

Reality is that a high proportion of marriages do fail.  It would therefore be wise to at least have had a discussion prior to the marriage about what would happen to assets and income if the marriage were to fail.  Drawing up a pre-nup is just going that one step further and recording those intentions.  In this way there is no uncertainty and both know what to expect if the marriage fails.

At the present time pre-nups are not legally binding in the UK.  This means that any court asked to consider the division of assets and income at the end of a marriage, is not bound to follow the terms of the pre-nup.  Of course a court is only going to become involved if one or other spouse does not adhere to the previously agreed terms of their pre-nup.  However in the event of a dispute a court must at least consider what was intended i.e. as recorded in the pre-nup and the circumstances in which the pre-nup was made.

A court can, if it chooses, uphold a pre-nup that is freely entered into by both parties with a full appreciation of its implications.  This then avoids the financial and emotional cost of lengthy court proceedings arguing about how assets and income is to be divided.  However if the pre-nup is to have any chance of being upheld by the court there are a couple of “rules” that should be followed when the pre-nup is being prepared.

1. Timing – The Law Commission has indicated that a pre-nup should be concluded 28 days before the marriage.  This is to avoid the suggestion of undue pressure being placed on one or other party.
2. Financial disclosure –The pre-nup should set out each party’s financial positions including their assets, income, pension and liabilities.  Such disclosure allows a transparent consideration of what might be a fair and equitable division of assets having regard to the likely legal entitlements of each spouse at the end of their marriage.
3. Legal advice – Both parties to the pre-nup should be in receipt of independent legal advice before signing so that they both fully understand the implications of the pre-nup.  In particular, and whilst the pre-nup cannot override the jurisdiction of the court, there has to be an understanding of the seriousness of the pre-nup and the fact that it can be considered and possibly upheld by a court at the end of a marriage.

The pre-nup is unlikely to be upheld if the court finds any evidence of mistake, duress, undue influence, misrepresentation or unconscionable conduct. The Law commission further suggests that a pre-nup should  be reviewed every few years as circumstances change and what might be a fair division at one point in the marriage may not be as time moves on. The birth of a child would be a point at which the provisions in the pre-nup should be reviewed.

For more information or guidance on drawing up a pre-nuptial agreement in advance of your marriage, please contact our family team, who will be more than happy to assist on family@franklins-sols.co.uk.

Gifting inheritance early to children is becoming ever more popular by parents. For some, it is seen as the perfect way of addressing two birds with one stone: helping their children get onto the property ladder and reducing the amount of Inheritance Tax that will be payable on their estate.

If you are thinking, ‘this sounds too good to be true, what are the consequences?’ you are asking the right question. This isn’t because it is always the wrong thing to do. Rather, it is because if you do it, you need to be aware of the risks. Not only could your chosen recipient be liable for an Inheritance Tax bill if you don’t survive a sufficient amount of time after making the gift (which they might not be able to afford), but you could also be inadvertently exposing yourself to a Capital Gains Tax liability which will be payable now, not in the future.

The risks to making lifetime gifts do heavily depend upon exactly what assets you are gifting, e.g. cash, property etc. and your personal circumstances. It may be a reasonable measure to take, but only if you have obtained the appropriate advice. By obtaining the appropriate advice, you can understand exactly what the risks are and if you do decide to proceed, you can take steps to mitigate the risks should they occur. Otherwise, it could result in unintended consequences that cost you more than the potential liability you were seeking to avoid!

If you would like to obtain advice or guidance regarding Lasting Power of Attorney or would like to make or review a Will, please contact our Wills team on wills@franklins-sols.co.uk or call Northampton: 01604 828282 / Milton Keynes: 01908 660966. Our experienced and friendly team will be able to provide answers to your questions or arrange an appointment with one of our Solicitors.

10th October 2018 is World Mental Health Day – a day to raise awareness about mental health issues, services available and things you can do to help yourself in these situations.

Research suggests that at least 1 in 4 of us will experience mental health issues, but the figure may well be much higher. There are of course many different types of issues and many different levels of severity. It can range from depression to anxiety, dementia, eating disorders and personality disorders to name just a few. The causes of these can be equally infinite.

There are many services out there aimed at helping people to cope with their mental health issues once they have arisen. There are however some issues which are much easier for people to help you with if you have prepared. For these, it is really important to put things in place like a Lasting Powers of Attorney to help others to help you. If you have someone that you know and Trust, you can allow them to assist you in your affairs. Your appointed Attorney(s) must consult with you and can only act under your direction whilst you have capacity. Therefore, you can be assured that you can maintain your independence and autonomy whilst getting assistance when you need it.

It is also important to organise the rest of your affairs before you lose capacity as afterwards you will not be able to do so. Things like preparing or reviewing your Will can only be completed by you whilst you have capacity to do so. No-one knows what the future holds and how life will affect us, but by putting your affairs in order now, no matter what comes your way, you can be confident that your loved ones will be able to give you the support that you need and that your wishes will be respected.

If you would like to obtain advice or guidance regarding Lasting Power of Attorney or would like to make or review a Will, please contact our Wills team on wills@franklins-sols.co.uk or call Northampton: 01604 828282 / Milton Keynes: 01908 660966. Our experienced and friendly team will be able to provide answers to your questions or arrange an appointment with one of our Solicitors.