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It's a sad fact that nearly half of all
marriages end in divorce, leaving many
couples to fight over the spoils of their
failed relationship.
Stone King specialises in helping divorcing
and separating couples reach agreement
on their financial and practical matters,
often without lawyers in the room. But
there may be times when you also need
specialist advice from one of our
experienced divorce solicitors.
If you are considering splitting up we
will explain what separation entails so
you can decide whether it is the best
approach for you. And if your relationship
has broken down irretrievably we will
help you establish grounds for divorce
and advise you on how to protect your
financial interests and those of
your family.
The issue of pensions, for example, can
be complicated and often requires expert
advice. For example, should you divide
the cash equivalent transfer value of the
Contents
Personal Affairs News Autumn – 2012
real & personal
1-2 Protecting your wealth when
relationships fail
3 Who will inherit your wealth?
4 Losing mental capacity
and managing overseas assets
Protecting your wealthwhen relationships failReaching agreement on financial
matters can be difficult when a
relationship breaks down. Sometimes
you need expert legal advice to
safeguard your assets, says Stone King's
John Brownrigg.
�
pension equally? Is it wise to offset the
value of the pension for a greater stake
in the family home? Or should you share
the income from the pension pot equally,
taking into account different life
expectancies?
When deciding this, should you look at:
• the whole pension pot?
• the value of the pension pot built up
during cohabitation and marriage?
• or the value of the pension pot built
up during the marriage only?
When it comes to family capital, you
should establish whether there is
enough money to provide a suitable
home for the children and the parent they
live with and, if there's enough money,
another property where the children can
stay during contact visits with the other
parent. You need to establish the value of
your assets and how big a mortgage
each of you are able to pay. Only then can
you know if there's enough money to buy
more than one property.
You should also seek advice on whether
you can protect money from an
inheritance or, if you are a beneficiary
of a trust fund, whether that asset has to
be taken into account. Similarly, you will
need advice about any family business or
farm, particularly in establishing whether
its value can be released and how.
It is common knowledge that a parent
looking after a child can apply for
maintenance and look to the Child
Support Agency to enforce payments.
But a spouse also has a claim for
maintenance where there is a substantial
difference in earning capacity or actual
income.
Sometimes you can offset your
maintenance claim against receiving
a greater capital lump sum. But you
should be cautious about doing this if
you have young children.
At Stone King we have five solicitors who
specialise in divorce law and three highly
trained mediators, all of whom have
helped many parents work together to
find their own solutions to the problems
they face. Mediation can be quicker,
cheaper and often offers longer lasting
solutions for you and your family.
For more information about Stone
King's specialist family law services
please contact
John Brownrigg on 01225 324441
www.stoneking.co.uk
Protecting your wealth when relationships fail (continued)
�
However, dying without a will – or
‘intestate’ to use the legal jargon – may
have undesirable results. The surviving
spouse or civil partner may end up sharing
the family estate with distant relatives who
are already well provided for.
Things can be even worse for unmarried
cohabitees who have no automatic right to
inherit their deceased partner’s assets if
they die without a will. A recent ruling, in
which the cohabiting partner of a deceased
man was bypassed for the inheritance of a
£750,000 estate in favour of their three-
year-old son, highlights the problem.
The Law Commission is proposing major
reform of our intestacy rules which would
give cohabitees similar rights to those
enjoyed by married couples. But it could be
some time before we see the law changed.
At the moment when someone dies
intestate their assets are distributed
according to antiquated rules dating back
to the 1950s. Where there are children,
the surviving spouse receives a legacy
of £250,000 and a life interest in half of
everything that is left over. The children
receive the other half.
Where the deceased
has no children the surviving
spouse gets a statutory legacy of £450,000
and half of what is left. The other half
passes to the remaining relatives, with
parents coming first in order of priority,
followed by brothers and sisters and then
their children.
If the intestate is married and is in the
unusual case of having no children,
parents, siblings, nieces, nephews or
grandparents, the spouse gets everything.
Property is often the biggest asset and the
cause of many a family dispute. If the
matrimonial home is in the deceased’s
sole name, or the deceased owns a share
as tenant in common, the home may have
to be sold to satisfy the claims of other
family members.
This can be a particular problem in places
like Bath where property prices are high
and many homes are worth more than the
spouse’s statutory legacy.
The taxman may also grab a large chunk
of the children’s share of the family fortune.
This is because inheritance tax may be due
if the value of the estate passing to
beneficiaries other than the surviving
spouse exceeds £325,000.
Where the deceased is not married the
whole of the estate goes to the children,
which is bad news for the cohabiting
partner. However, you may not want your
children to receive a large inheritance
until they are mature enough to handle
the responsibility.
By making a will you can address all these
issues and distribute your estate in the
most appropriate and tax-efficient way.
Not making your wishes known can only
add to the upset experienced by the loved
ones you leave behind.
At Stone King we have extensive experience
of drafting all types of wills, providing
greater certainty and clarity for our clients
and their families.
For more information about Stone King’s
specialist Trusts & Estates team,
please contact
Charles Hayward on 01225 324404 or by
email CharlesHayward@stoneking.co.uk
Who will inherit your wealth?Nearly 30 million adults in
this country don’t have a will.
The figure is staggering but
perhaps not altogether
surprising given that no one
likes to confront their
own mortality.
Real and Personal deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individual circumstances of a particular problem.
www.stoneking.co.ukBath � London � Cambridge � Melksham
Stone King LLP - registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ T: 01225 337599
© Stone King LLP 2012 08/2012
A growing number of us are buying homes
abroad despite the downturn. Perhaps you
are in the fortunate position of owning
foreign property or aspire to have your own
place in the sun, or maybe you are a foreign
national with property in England.
But what would happen to those assets
if you lose mental capacity gradually
following an illness, or suddenly following
an accident. Would someone acting on your
behalf be able to manage or recover your
property from another country?
Unfortunately, there is no simple answer.
Each country has its own law governing
mental capacity and so it depends in which
country your property is situated as to
which set of rules prevails. Getting the
right advice can be crucial.
In England, for example, an individual can
execute a ‘Lasting Power of Attorney’ (LPA)
which gives someone appointed by you the
authority to make decisions about your
assets and/or wellbeing when you are no
longer able to do so. You can only make an
LPA if you have the mental capacity to do
so. English LPAs are not automatically
recognised by other jurisdictions and often
you will need expert help to smooth the
process. For example, you may struggle
to convince a notaire in rural France to
recognise an English LPA without the
help of an English solicitor.
If you do not have an LPA, the person trying
to manage your affairs may be forced to
argue your case in a foreign court (which
will be very difficult, costly and time
consuming) or even wait until the owner
of the asset dies and then try to secure the
asset through the local probate process.
This may be even more difficult because
the laws of succession (who gets what
when you die) differs in different
jurisdictions, which means the people you
wish to benefit from your estate may not
do so, even if you have a will.
Foreign equivalents to an LPA are not
always recognised in England – it is
important that foreign nationals with
UK assets make an English LPA to
avoid doubt.
Stone King has significant experience and
expertise in helping recover foreign assets
and dealing with the affairs of people who
lack capacity and can help:
• By providing practical solutions and
liaising with foreign counter-parts.
• By helping your English LPA be
recognised abroad.
• With the process of drawing up a foreign
LPA – such as a French Mandat de
Protection Future.
• By guiding you through your options if
you wish to use a foreign LPA to manage
English property.
• By helping you make an English LPA to
deal with your UK assets.
Stone King can also advise you on
international family, succession, property
and estate planning matters.
For more information please contact
Dan Harris on 01225 326761
www.stoneking.co.uk
Losing mental capacity and managing overseas assets
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