No one wants to think of the possibility that one day we might be faced with a decision about putting a loved one into residential care because of illness or disability. But it is important to make sure that your family and other loved ones are provided for if anything happens to you.
The Community Care Act 1990 states that local councils have the right, by law, to force the sale of a family home to pay for long term residential care. The Local Authority has the power to seize all but £22,500 of the assets as a contribution towards the cost of that care.
A common problem is how to protect the family home from being seized in such a manner – and as official government statistics show that some 69,000 homes are sold every year to fund long term care (which is equivalent to one home being sold every four minutes) this is a big issue - but it can be partly addressed by simply making the correct type of Wills.
First of all, though, it is important to understand that whilst both people are alive if one of them goes into long term care then the Local Council cannot force the sale of the property provided that it is in both their names (e.g. owned 50-50) – the sale can only be forced if the person going into long term care owns the property 100% outright.
But what if one person dies? Ensure that the ‘survivor’ never owns the property 100% outright. This is achieved by the first to die having a Will leaving his/her share of the property to the eventual heirs of the estate after both have died, but specifying that the survivor has a lifetime right to live in the property (a ‘Life Interest’). Thus the survivor only owns 50% of the property and therefore the deceased half share is protected and cannot by claimed by the local authority to fund long term care.
In reality, we have no way of telling who is going to pass away first and so both husband and wife need such a Will. These Wills are often referred to as 'Protective Property Trust' Wills or 'Life Interest Wills'. To make them, you must both be alive now and Seatons Solicitors can sort everything out for you both simply and easily and provide you with all of the legal advice you need.
When you have completed making your Will with Seatons Solicitors you should also seriously consider making Lasting Powers of Attorney to help manage and protect your assets if you both have to go into long term care at the same time.
17 January 2011
5 January 2011
New Year's Resolution - Have you made your Will?
No one wants to think of the possibility of death - that is, his/her own death. But it is important to make sure that your family and other loved ones are provided for if anything happens to you. If you don't have a Will then now is the time to give it serious thought. If you have made a Will and you want to make amendments then do so now because it will be too late to make those changes if something should happen to you.
Seatons Solicitors can help you to create a Will or modify and append an existing Will. We also have legal self help documents to get you started with making your will.
Always make sure that your wishes are properly documented because the courts will look at your Will as the final proof of your wishes regarding your assets on your death. Remember - if you don't have a written Will the courts will assess what is to happen to your assets and they will order the disposal of your assets in the way they believe is best. The problem is that this may not be according to your wishes; so make sure you look seriously at the making of a Will at the earliest.
What is a Will?
A Will is a document containing your instructions and wishes as to how your property and assets are to be distributed after your death. Any person, of any age, should seriously consider a Will at the earliest. A Will should not only be for people who have reached an age where death is not far away. People die at all ages and a Will is needed especially if you have assets and property to be allocated to those you wish to benefit.
A Will is the expression of the person's wishes concerning how their property is to be distributed. It is a written statement, signed in compliance with the various formalities covered by legislation. It is a legal document containing the names of the people you want to benefit, as well as details of your possessions at the date of your death. The people you want to benefit are called beneficiaries.
Your property or possessions will include everything you own, such as your home, land, vehicles, bank accounts, benefits of insurance policies, furniture, boat, investments such as shares, personal jewellery, artwork, and so on. A Will is the only way you can ensure your assets will be distributed according to your wishes after your death.
What is a Valid Will?
A valid Will is a Will that is accepted by the court and put into effect by the court granting what is known as probate. Probate is approval or acceptance by the court of how your assets are to be dealt with.
A valid will must have the following features:
• It must be in writing - handwritten, typed or printed.
• It must be signed with your signature at the end of the document.
• It must be witnessed by at least two other people present at the time of signing. They need to acknowledge they were present and must sign the Will as witnesses in your presence. They don't have to be together at the same time of signing.
If your Will is not made in this manner then the court may not accept it and it would be unenforceable (the courts will not enforce it). The court has discretion to grant probate (probate is confirmation that the Will is valid and accepted) and your possessions could be disposed of as if you hadn't made a Will at all. When the court exercises this discretion, it has to be satisfied that the document sets out clearly how you wanted your assets to be allocated or distributed.
About Completing a Will
Most people know that they need to put together a Will sometime before they die. Unfortunately, the majority of people these days just don't have a Will. They don't think about writing up a Will until they are past the age of 50.
Writing a Will doesn't need to be expensive. Once it is done you can rest easy, knowing that your wishes will be followed after your death. Most Wills can be composed quite simply. Others are more complex and involve more people, substantial assets, and cash. These Wills should be discussed with Seatons Solicitors who specialise in this area.
While a Will is not critical if you do not possess much (e.g. property for distributions), you may have personal items such as jewellery, manuscripts, or trophies that you want to be left to specific people. Having a Will clarifies this and saves any arguments later on.
If your estate, possession and property are valuable, you should ensure that a will sets out your wishes and instructions clearly. It might be inconvenient for you to set up a Will while you are alive, but it could save arguments and fighting amongst your beneficiaries.
Why Make a Will?
If a person dies without making a Will then the rules according to law will apply. If you die without a Will the term is; you have died "intestate". If you die intestate then the court rules on how things are done, how your property is distributed, and who the beneficiaries would be. It may not be according to your wishes, so dying intestate is not a good position to be in as far as your beneficiaries are concerned.
Because most of us don't know when we are going to die, we should approach the drafting of a Will as if we haven't many days left on this earth. This is important because it saves arguments amongst family members and beneficiaries after your death.
Seatons Solicitors can help you to create a Will or modify and append an existing Will. We also have legal self help documents to get you started with making your will.
Always make sure that your wishes are properly documented because the courts will look at your Will as the final proof of your wishes regarding your assets on your death. Remember - if you don't have a written Will the courts will assess what is to happen to your assets and they will order the disposal of your assets in the way they believe is best. The problem is that this may not be according to your wishes; so make sure you look seriously at the making of a Will at the earliest.
What is a Will?
A Will is a document containing your instructions and wishes as to how your property and assets are to be distributed after your death. Any person, of any age, should seriously consider a Will at the earliest. A Will should not only be for people who have reached an age where death is not far away. People die at all ages and a Will is needed especially if you have assets and property to be allocated to those you wish to benefit.
A Will is the expression of the person's wishes concerning how their property is to be distributed. It is a written statement, signed in compliance with the various formalities covered by legislation. It is a legal document containing the names of the people you want to benefit, as well as details of your possessions at the date of your death. The people you want to benefit are called beneficiaries.
Your property or possessions will include everything you own, such as your home, land, vehicles, bank accounts, benefits of insurance policies, furniture, boat, investments such as shares, personal jewellery, artwork, and so on. A Will is the only way you can ensure your assets will be distributed according to your wishes after your death.
What is a Valid Will?
A valid Will is a Will that is accepted by the court and put into effect by the court granting what is known as probate. Probate is approval or acceptance by the court of how your assets are to be dealt with.
A valid will must have the following features:
• It must be in writing - handwritten, typed or printed.
• It must be signed with your signature at the end of the document.
• It must be witnessed by at least two other people present at the time of signing. They need to acknowledge they were present and must sign the Will as witnesses in your presence. They don't have to be together at the same time of signing.
If your Will is not made in this manner then the court may not accept it and it would be unenforceable (the courts will not enforce it). The court has discretion to grant probate (probate is confirmation that the Will is valid and accepted) and your possessions could be disposed of as if you hadn't made a Will at all. When the court exercises this discretion, it has to be satisfied that the document sets out clearly how you wanted your assets to be allocated or distributed.
About Completing a Will
Most people know that they need to put together a Will sometime before they die. Unfortunately, the majority of people these days just don't have a Will. They don't think about writing up a Will until they are past the age of 50.
Writing a Will doesn't need to be expensive. Once it is done you can rest easy, knowing that your wishes will be followed after your death. Most Wills can be composed quite simply. Others are more complex and involve more people, substantial assets, and cash. These Wills should be discussed with Seatons Solicitors who specialise in this area.
While a Will is not critical if you do not possess much (e.g. property for distributions), you may have personal items such as jewellery, manuscripts, or trophies that you want to be left to specific people. Having a Will clarifies this and saves any arguments later on.
If your estate, possession and property are valuable, you should ensure that a will sets out your wishes and instructions clearly. It might be inconvenient for you to set up a Will while you are alive, but it could save arguments and fighting amongst your beneficiaries.
Why Make a Will?
If a person dies without making a Will then the rules according to law will apply. If you die without a Will the term is; you have died "intestate". If you die intestate then the court rules on how things are done, how your property is distributed, and who the beneficiaries would be. It may not be according to your wishes, so dying intestate is not a good position to be in as far as your beneficiaries are concerned.
Because most of us don't know when we are going to die, we should approach the drafting of a Will as if we haven't many days left on this earth. This is important because it saves arguments amongst family members and beneficiaries after your death.
Compromise Agreements Protecting Employees and Employers
A compromise agreement is a legally binding agreement usually between an employee and employer when the parties want to set out the terms and conditions reached when a contract of employment is to be terminated or a dispute is to be resolved (when the employment contract is not being terminated).
There are a number of different circumstances eg. redundancy, by mutual agreement, dismissal, to settle an Employment Tribunal claim when such an agreement can be used.
The use of compromise agreements in redundancy situations is a relatively recent development and has been initiated mainly by employers who want to prevent employees complaining to a tribunal after they have been made redundant.
If an employer does not comply with the law in making redundancies (perhaps through failing to consult properly, failing to use fair selection criteria etc) an employee can complain to a tribunal that the redundancy was unfair. This can be done after the redundancy and could result in an award of compensation or even reinstatement.
The only way an employer can be sure that an employee will not complain to a tribunal after redundancy is to persuade them to sign away their right to do so. This can be done in a compromise agreement and has the effect of turning the redundancy package into a "full and final" settlement of any claims the employee has against the employer.
Compromise agreements are recognised by statute and are the only way a claim can be legally binding without tribunal proceedings having been initiated.
What terms does a Compromise Agreement have to contain?
The compromise agreement will state the full breakdown of the payments the employee will receive and the extent to which the sums will be paid free of tax. Usually, up to £30,000 compensation can be paid without deduction, but the employee will have to give tax indemnity to the employer within the agreement, this is entirely usual.
The compromise agreement will also provide for confidentiality both in terms of the employers trade secrets and business affairs and also of the terms of the agreement. The employee will be paid a small additional sum for agreeing to this - usually a few hundred pounds. The employee will also usually be required not to make any derogatory comments against the employer. Some employees prefer such agreements to be mutual, and employers are often receptive to such request.
The compromise agreement may confirm the existing post-termination restrictive covenants that the employee has already bound by under their contract of employment. In some cases, the covenants are new, having appeared in the compromise agreement for the first time. In either case, the employee needs to take specific advice on this as their ability to work for a competitor and/or service old clients and customers could be hampered after they leave their employment.
There will be a long list of statutes in the compromise agreement (such as the Race Discrimination Act, Sex Discrimination Act, Employment Rights Act) and many more, under which the employee will agree not to bring a claim. The compromise agreement is intended to be in full and final settlement of all claims but the employer needs to list these to be able to enforce the agreement.
Why is a solicitor involved?
Compromise agreements can be written in very legalistic language and can refer to sections of Acts and Regulations which the employee may never have heard of. Because of this and because it is important that the employee understand the effect of the agreement, it is a legal requirement that they get professional advice on what the agreement means. It is also a legal requirement that their adviser signs the agreement to confirm that advice has been given.
An employee must have the compromise agreement explained by an independent solicitor before the agreement becomes binding. The solicitor giving the advice must also sign the agreement and certify that the appropriate advice has been given.
According to the Employment Rights (Dispute Resolution) Act 1998, that advice can only be given by a qualified solicitor, a qualified trade union official, or a qualified advice centre worker, all of whom must be covered by an appropriate certificate of indemnity insurance. A solicitor will advise the employee if the terms offer them the correct protection and should also advise if they are being offered a suitable amount of compensation. The number of years that the employee has worked, their salary, job title, and most important of all, the reason for the termination are all important factors.
There is no legal or other obligation on the employee to sign a compromise agreement if they are not happy with it. Refusing to sign means that there is no agreement between the employee and their employer, and they are free to make a claim to the employment tribunal (which must be within 3 months of their termination date). In redundancy cases, however, this could mean that the employer would refuse to pay the employee the full enhanced package and will instead pay the minimum state entitlement. In non-redundancy cases, the employee ultimately puts the ex-gratia payment being offered into jeopardy.
Many compromise agreements are, however, capable of being negotiated upwards. In some cases, a tribunal claim may be necessary.
There are a number of different circumstances eg. redundancy, by mutual agreement, dismissal, to settle an Employment Tribunal claim when such an agreement can be used.
The use of compromise agreements in redundancy situations is a relatively recent development and has been initiated mainly by employers who want to prevent employees complaining to a tribunal after they have been made redundant.
If an employer does not comply with the law in making redundancies (perhaps through failing to consult properly, failing to use fair selection criteria etc) an employee can complain to a tribunal that the redundancy was unfair. This can be done after the redundancy and could result in an award of compensation or even reinstatement.
The only way an employer can be sure that an employee will not complain to a tribunal after redundancy is to persuade them to sign away their right to do so. This can be done in a compromise agreement and has the effect of turning the redundancy package into a "full and final" settlement of any claims the employee has against the employer.
Compromise agreements are recognised by statute and are the only way a claim can be legally binding without tribunal proceedings having been initiated.
What terms does a Compromise Agreement have to contain?
The compromise agreement will state the full breakdown of the payments the employee will receive and the extent to which the sums will be paid free of tax. Usually, up to £30,000 compensation can be paid without deduction, but the employee will have to give tax indemnity to the employer within the agreement, this is entirely usual.
The compromise agreement will also provide for confidentiality both in terms of the employers trade secrets and business affairs and also of the terms of the agreement. The employee will be paid a small additional sum for agreeing to this - usually a few hundred pounds. The employee will also usually be required not to make any derogatory comments against the employer. Some employees prefer such agreements to be mutual, and employers are often receptive to such request.
The compromise agreement may confirm the existing post-termination restrictive covenants that the employee has already bound by under their contract of employment. In some cases, the covenants are new, having appeared in the compromise agreement for the first time. In either case, the employee needs to take specific advice on this as their ability to work for a competitor and/or service old clients and customers could be hampered after they leave their employment.
There will be a long list of statutes in the compromise agreement (such as the Race Discrimination Act, Sex Discrimination Act, Employment Rights Act) and many more, under which the employee will agree not to bring a claim. The compromise agreement is intended to be in full and final settlement of all claims but the employer needs to list these to be able to enforce the agreement.
Why is a solicitor involved?
Compromise agreements can be written in very legalistic language and can refer to sections of Acts and Regulations which the employee may never have heard of. Because of this and because it is important that the employee understand the effect of the agreement, it is a legal requirement that they get professional advice on what the agreement means. It is also a legal requirement that their adviser signs the agreement to confirm that advice has been given.
An employee must have the compromise agreement explained by an independent solicitor before the agreement becomes binding. The solicitor giving the advice must also sign the agreement and certify that the appropriate advice has been given.
According to the Employment Rights (Dispute Resolution) Act 1998, that advice can only be given by a qualified solicitor, a qualified trade union official, or a qualified advice centre worker, all of whom must be covered by an appropriate certificate of indemnity insurance. A solicitor will advise the employee if the terms offer them the correct protection and should also advise if they are being offered a suitable amount of compensation. The number of years that the employee has worked, their salary, job title, and most important of all, the reason for the termination are all important factors.
There is no legal or other obligation on the employee to sign a compromise agreement if they are not happy with it. Refusing to sign means that there is no agreement between the employee and their employer, and they are free to make a claim to the employment tribunal (which must be within 3 months of their termination date). In redundancy cases, however, this could mean that the employer would refuse to pay the employee the full enhanced package and will instead pay the minimum state entitlement. In non-redundancy cases, the employee ultimately puts the ex-gratia payment being offered into jeopardy.
Many compromise agreements are, however, capable of being negotiated upwards. In some cases, a tribunal claim may be necessary.
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