For centuries, pets have held a special place in human hearts and homes. Whether it’s the wag of a dog’s tail at the sound of your voice or the comforting purr of a cat curled up beside you, animals have a unique ability to offer companionship, loyalty, and unconditional love. They’re not just pets, they become family and, for many, the commitment to a pet isn’t just for the moment – it’s for life.

The UK is undeniably a nation of animal lovers, with 51% of adults owning at least one pet. Yet, despite this, only 28% of UK adults have made a Will. This gap leaves many pets vulnerable. If a pet owner dies without a Will, it falls to the estate’s administrators, determined by the intestacy rules. Unfortunately, the person legally entitled to administer your estate may not be the person you would choose to care for your beloved companion.
By including clear provisions for your pets in your Will, you can ensure they are placed in safe, loving hands and that their ongoing care is planned and funded according to your wishes. In this article we explore the options available to you in respect of making alternative provision within your Will for your pets, depending on the circumstances.

Option 1: Gifting your pet to a family member or friend

This is one of the simplest options available and involves a gift in your Will to a specific individual, that you trust implicitly, to look after them when you are not around. This gift could be coupled with a monetary gift to assist with bills, food, insurance etc., but this is not strictly necessary and the monetary aspect would not be legally binding on them to use for those purposes, it is usually a wish (which is why it is important to give careful consideration when deciding who you are making the gift to).

Option 2: Charities

In the event that you do not have any family or friends who you trust, or who are able due to the circumstances, to look after your pets, then another option is to consider leaving your pet to a charity of your choice. There are a number of charities that can assist with rehoming them to a loving home and again, this could be coupled with a monetary gift to the charity to assist with costs etc.

Option 3: Trusts

This option is more complex and while the law typically requires that all non-charitable trusts have identifiable beneficiaries with legal standing (i.e. legal personality), there are rare exceptions. One such exception is known as a “trust of imperfect obligation.” These are unusual types of trusts where there may not be a human beneficiary who can enforce the trust – yet the law still allows them under specific circumstances.A key example of this is a trust for the care of specific animals. In effect, the law allows someone to leave money in a trust specifically for the upkeep and well-being of a beloved pet. This was seen in an old case of Pettingall v Pettingall (1842) where provision was made for the deceased’s horse and held to be a valid gift.

Option 4: Letter of Wishes

Finally, no specific provision is made within the Will which would result in your pet forming part of the residuary estate. A letter of wishes could then be prepared to sit alongside your Will, detailing your wishes in terms of who should look after your pet, together with any other specific wishes. This letter is not legally binding however so if there are any concerns regarding a dispute or someone being suitable to look after them, for example, it is worth making specific provision within your Will as this is legally binding.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01908 660966 or email info@franklins-sols.co.uk.

 

Life is unpredictable, and while we naturally hope for the best, preparing for the unexpected is crucial. We often focus on things like retirement savings, property, and our estate, but the prospect of losing mental or physical capacity — even temporarily — is something many people overlook.

Preparing for potential incapacity isn’t just about financial protection, but also about ensuring that our wishes are respected when we can’t speak for ourselves. Illness, injury, or the natural effects of ageing can sometimes leave us vulnerable, so having a plan in place to manage both health and financial decisions during such times is incredibly important.

It’s almost like putting a safety net in place — not because we expect to fall, but because if we do, we want to be certain it’s there to catch us, and that it will catch us in the way we would have chosen.

One of the most empowering things you can do is take control of the situation by planning ahead. A Lasting Power of Attorney (LPA) is an essential legal document that allows you to appoint one or more individuals, known as your ‘Attorney(s)’ to make decisions on your behalf if you either authorise them to act whilst you have capacity (this option is only available for your financial LPA) or if you become unable to do so yourself, whether due to illness, injury, or incapacity. There are two main types of LPAs:

1. Property and Financial Affairs LPA – which covers decisions relating to your finances, property and other assets.

2. Health and Welfare LPA – which covers decisions about your personal health, where you live, medical care, day to day activities and well-being.

Here are some of the key reasons why preparing a Lasting Power of Attorney is important:

1. Control over who makes decisions for you

Without an LPA in place, if you lose mental capacity, decisions about your care or finances could be made by someone that may not have wanted involved, such as the Local Authority, family member or even a friend.

2. Peace of mind for you and your loved ones

Having an LPA in place gives both you and your family peace of mind. If something happens and you’re no longer able to make decisions, your appointed Attorney(s) will already be empowered to step in. This reduces stress and uncertainty for your family during a challenging time.

3. Prevents delays and possible complications

Without an LPA, if you lose mental capacity, your family might have to apply to the Court of Protection for a deputyship order. This process can be lengthy, costly, and stressful. An LPA avoids this situation, as it gives someone immediate authority once the document has been registered to step in and act on your behalf, when the circumstances arise.

4. Flexibility

You can specify exactly what decisions you want your attorney to be able to make. For example, with the Property and Financial Affairs LPA, you can choose whether your attorney can make decisions about your property immediately or only after you’ve lost mental capacity. Although this option isn’t available for the Health and Welfare LPA, you may wish to include preferences of instructions, which need to be carefully worded, on things like medical treatment, care options and even whether you want your attorney to make decisions about life-sustaining treatments.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

A question I often get asked by clients when discussing Wills and the costs involved is ‘why do I need a Solicitor to prepare my Will when I can do one online or write a Will myself?’

A recent article published by the Law Society Gazette answers this question really well by highlighting that sometimes your personal affairs may not be as simple as you initially think, which is where bespoke legal advice is imperative to mitigate potential claims or issues arising in the future.

This may, for example, involve a discussion surrounding capacity, disinheriting certain beneficiaries, benefitting vulnerable family members/friends or protecting assets where you have children from different relationships. These are the types of issues usually highlighted during the initial appointment when taking your Will instructions and the options available going forward, together with potential avenues to mitigate any future claims, would be discussed in detail.

The Article goes on to discuss insurance differences between law firms and unregulated organisations offering a Will writing service. In some cases, the different level of insurance is so significant that in the latter case it could only cover the cost of the Will and not the actual long term loss that may result due to the level of advice provided.

For advice in relation to writing a Will, contact our expert Team on 01908 660966 / 01604 828282 or email Wills@franklins-sols.co.uk.

Photo by Moose Photos from Pexels

When we think about making a Will, very few of us realise digital assets can be included, let alone consider including them. Much of the law governing Wills dates back to the Wills Act, which was passed in 1837, so it’s understandable. However, it’s worth thinking about including them.

What digital assets you can include in your Will

Digital assets can have significant value. Cryptocurrencies, such as Bitcoin, can be extremely valuable. But equally, it can be easily overlooked and lost if your computer is discarded.

More commonly, online banking facilities, such as PayPal and online shopping accounts, should be considered.

In today’s digital world, it’s likely you have at least one social networking account, such as Facebook or LinkedIn, if not more. Think about what you’d want to happen to these when you pass away. How will your Executors know exactly what online social media accounts you have and how to access them?

It’s also worth thinking about anything digital with sentimental value. Many of us have photos, videos and music stored in the cloud. Access to these is often based on license agreements, so you can access them, but you may not have any rights to these items. With this in mind, you should back-up items so you, and those that survive you, can access them.

What should you do about these assets?

For all of these digital assets, consider including a note in your Will, so your Executors know where to find them and how to access them when they’re administering your estate. For digital assets with financial value, it’s worth discussing them with a solicitor, as it could affect your Inheritance Tax position.

If you’re considering including any digital assets in your Will, our expert Private Client team can give you advice and support. Please get in touch on 01908 660 966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.

 

What is a Personal Representative?

Personal Representatives are individuals who have legal authority and responsibility to administer a deceased’s estate. There are two types of Personal Representatives; an Executor and an Administrator.

An Executor is appointed under the last Will and Testament of a deceased. In absence of such a document, then an Administrator is appointed dictated by the Rules of Intestacy.

Personal Representatives have an overriding duty when administering an estate and their duty falls within the scope of Section 25 of the Administration of the Estate Act 1925 (“The Act”).

What does a Personal Representative have to do?

In essence, a Personal Representative has a duty to collect in the real and personal estate of the deceased and administer it according to the law.

What if a Personal Representative is not acting in accordance with their duties?

If a Personal Representative fails to act in accordance with their duties then a beneficiary, co-executor or co-administrator can force that individual to act in accordance with their duties as prescribed by law.

What steps should I take if a Personal Representative is not acting in accordance with their duties?

There are many ways in which a Personal Representative can be found to not fulfil their duties. If this is the case, the first step is to write to the individual directly requesting that an account of the administration of the estate be provided as soon as possible.

If the response is not satisfactory, a beneficiary or co-executor/co-administrator has the right to apply to Court to remove and substitute them.

How can I remove a personal representative?

An application can be made requesting the Court to exercise its discretion in either appointing, removing or substituting a Personal Representative.

Such an application will require detailed reasoning on why the Court should exercise its discretion in such a way and that there is a threat to the proper administration of the estate if the Court does not exercise its discretion in the way requested.

These types of applications are not straightforward as there is a requirement to show that the Personal Representative is not acting in accordance with their duties and requesting the Court to remove them.

The Court will need to be satisfied that the Personal Representative is unsuitable for such a position as a result of serious misconduct.  Section 50 of the Administration of Justice Act 1985 provides the High Court with the discretionary power to appoint a substitute or terminate the appointment of a Personal Representative.

This application will need to be made in accordance with Part 57 of the Civil Procedure Rules 1998 which sets out the requirements that are needed when making such an application.

What if a Personal Representative agrees to be removed?

If a Grant has been extracted and the Personal Representative no longer wants to act or refuses to do so then either they or someone else can make an application for the revocation of the Grant under Rule 41 of the Non-Contentious Probate Rules 1987.

It is important to note that such an application can only be made by the Personal Representative themselves or by someone else enclosing the consent of the Personal Representative.

For further advice and assistance contact Maninder Mann, Solicitor in our Dispute Resolution team on 01604 828282 / 01908 660966 or email maninder.mann@franklins-sols.co.uk.

So you have been left nothing or not as much as you thought you would get – what rights do you have?

There are two ways an individual can dispose of their estate: by executing a Will or in absence of this document then in accordance with the Intestacy Rules.

What can I do?

The Inheritance (Provision for Family and Dependants) Act 1975 (“The Act”) is an Act of Parliament that provides protection to individuals who have been financially dependent on a deceased prior to their death.

The Act will come into play when a Will or the Intestacy Rules fails to provide a “reasonable financial provision”. The Act provides protection to spouses, civil partners, cohabitees, children and any other dependants who have survived the deceased and been left without the relevant means to survive.

Am I eligible to make a claim under the Act?

There are certain categories to be satisfied in order to be eligible to present a claim to Court and these are as follows:

  1. The deceased must have been living in England and Wales at the time of death;
  2. As an applicant, you must fall within one of the categories as outlined in Section 1 (1) of the Act (listed above); and
  3. If the above is satisfied, then there is a strict time limit to lodge an application to Court of six months from when the Grant of Probate or Grant of Letters of Administration was issued from the Probate Registry.

What factors will the Court consider?

The Court will need to consider the applicant’s needs and resources and consider what is reasonable for them to receive for their own maintenance.

The factors the Court will consider are set out in Section 3 (1) of the Act and they will take into account the following: the financial needs and resources of the applicant, any other applicant, any other beneficiary and the size and nature of the estate.

The Court will also consider if the deceased had any obligations and responsibilities towards the applicant or any other beneficiary of the estate as well any physical or mental disability of the applicant.

Will the Court apply the factors under Section 3 (1) of the Act to each applicant the same?

No. Any claim under the Act made by a spouse or civil partner are different and the Court when determining what is reasonable will look further than what is required for maintenance and consider the following factors as set out in Section 3(2) of the Act which are summarised below:

  1. The age of the applicant and the duration of the marriage;
  2. The contribution the applicant made to the welfare of the family;
  3. What the applicant would have reasonably expected to receive had the marriage been terminated by a divorce.

Is Court the only option?

Given the time, emotion and cost that can go into pursuing such a claim it is always advisable to consider Alternative Dispute Resolution (ADR) as an option to resolving disputes at the earliest opportunity. ADR is a Court free environment and is cost effective and quicker than going to Court. Here at Franklins Solicitors LLP we embrace all forms of ADR.

Claims such as these can strain relationships and divide families. Given the strict time limits it is imperative if you are contemplating a claim under the Act to seek specialist advice to ensure a full case plan is prepared to outline your options and next steps.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.

The recent case of McCarthy v McCarthy of 10th July 2020 saw the Court uphold the Will of the late Margaret Wilcox despite the circumstances in which it was prepared being questioned by two of her children who argued undue influence. 

In this case the Will of the late Mrs Wilcox had been written by the beneficiary who stands to inherit the deceased’s property and was subsequently signed in the presence of the said beneficiary’s best friend and his wife. 

It is important to note that despite the Will being upheld by the Court, the manner in which the Will was prepared was considered ‘concerning’ according to the Judge. Although the circumstances were concerning, there were however other factors which affected the Judge’s decision in this case, including a Deed in relation to the same property, and each case will be decided on its own facts.

What this case does highlight is the importance of seeking specialist advice when considering the preparation of your Will as the outcome of this case could have been significantly different given the concerning background facts regarding the manner in which the Will was prepared, together with the late Mrs Wilcox’s Alzheimer’s diagnosis earlier in the year.

Through using a Solicitor, your wishes will be noted together with your reasoning as to why you wish for your estate to be left in a certain way. This will provide evidence to the court should your Will ever be contested in the future and assists with providing a background in respect of the decision making process. Capacity issues would also be noted and any concerns may result in a capacity assessment being undertaken to provide the Will with a greater degree of security.

This case also highlights the importance of documenting your intentions, as here case the Deed relating to the property was a significant contributing factor in the decision to uphold the Will of the late Mrs Wilcox.

If you would like to obtain advice or guidance regarding the preparation of a Will or Declaration of Trust relating to your property, please contact our Private Client team on wills@franklins-sols.co.uk or call Northampton: 01604 828282 / Milton Keynes: 01908 660966.

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

 

As of today, 6th April 2020, the Residence Nil Rate Band (RNRB) has increased to £175,000 per person.

Q: So, what is the Residence Nil Rate Band?

A: The RNRB is an additional inheritance tax allowance which came into force in April 2017. The allowance was initially set at £100,000, increased each tax year by £25,000 until tax year 6th April 2020/21 where it is set at £175,000, increasing the following tax years in line of inflation.

The additional inheritance tax allowance is available when you leave a ‘qualifying property’ directly to a ‘direct descendant’.

Q: What is a ‘qualifying property’?

A: Only one property can qualify for the RNRB and therefore, if you own and lived in more than one property, your executor can pick which property to apply the tax relief to.

What is essential is that the person who has died, must have owned and lived in the property at some point during their lifetime.

Q: What happens if I sell a property before my death that would have qualified?

A: This may not be a problem, as the government have provided for this scenario within the ‘downsizing provisions’. This is a complex area and professional advice may be required to assist with the calculation to ensure that the correct tax allowance is applied.

Q: Who is considered a ‘direct descendant’?

A: Accordingly to government guidelines:

This also includes:

Q: What if I don’t use it?

A: This is quite common, especially where a married couple leaves everything to the survivor on first death. The law provides for this scenario and confirms that the RNRB, or a proportion of it, can be transferred between spouses. This is known as the Transferable Residence Nil Rate Band. Therefore, provided that the surviving spouse leaves a qualifying property to a direct descendant, then the allowance can be claimed.

It is important to note however, that, as with other provisions relating to Inheritance Tax, the additional tax allowance can only be transferred between spouses/civil partners. It does not apply to cohabitees.

Q: What does this mean for Inheritance Tax?

A: The current rules provide that a married couple, leaving everything to each other and then down to children may have a combined tax free allowance of £1,000,000. This includes the Nil Rate Band currently set at £325,000, together with the RNRB of £175,000, both of which can be transferred between estates of spouses if unused.

For everyone else, this provides that they may have an allowance of £500,000 (taking into account their own Nil Rate Band of £325,000 and their Residence Nil Rate Band of £175,000) provided that the criteria for claiming the same are met.

Q: So, what do you need to do?

A: You may wish to give careful consideration to preparing or reviewing your Will to ensure tax efficiency in light of recent changes. Specialist advice is recommended as the manner in which your Will is prepared may affect the eligibility of the Residence Nil Rate Band. For example, the use of Trusts may affect it’s availability but will depend on the type of Trust itself. 

For advise and assistance in relation to future and Estate Planning, contact our expert Private Client team today on 01908 660966 / 01608 828282 or email privateclient@franklins-sols.co.uk. 

Many law firms around the UK, including ourselves, have seen an increase in the number of enquiries relating to preparing or updating a Will, mainly from elderly or vulnerable individuals.

In light of current circumstances, key workers, those who are working on the frontline of the pandemic, have also been advised to put their affairs in order. As such, Franklins are currently offering a 50% discount to all NHS staff in Northamptonshire and Buckinghamshire who wish to prepare their Will. 

It is important to remember that a Will not only ensures that your wishes as to who will benefit from your estate when you pass away are clear but also deals with other important matters such as who will care for any minor children that you may have, can specifically gift sentimental items to specific individuals ensuring that certain assets are kept in the family or, with careful planning, can also protect vulnerable beneficiaries. 

There is also a common misconception that if someone were to pass away, everything will pass to their surviving spouse. This is simply not the case. If you pass away without a Will, the intestacy rules confirm the first £270,000 will pass to the surviving spouse, together with all personal possessions. The remainder of your estate, if you have children, will then be divided so that 50% will pass to the surviving spouse and 50% will pass to equally between the children. This could have unintended consequences and could leave the survivor in a very vulnerable position, especially for example if there are children from previous relationships.

Another issue to also remember, is that cohabitees will not inherit under the intestacy rules. This may lead to a cohabitee being left in a vulnerable position whereby they may have to sell their property for example to release the equity to the beneficiaries of your estate. This may have a knock on effect of the cohabitee having to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 which will in itself incur unnecessary costs and heartache for those left to deal with matters, and which could all have been avoided with the preparation of a Will.

We cannot stress enough how important planning for the future is and here at Franklins we are dedicated to assist where we can. If you would like to obtain advice or guidance regarding the preparation of your Will, please contact our Private Client team on privateclient@franklins-sols.co.uk or call our Northampton office on 01604 828282 / Milton Keynes 01908 660966.