Differences between an Executor and Attorney

Differences between an Executor and Attorney

Differences between an Executor and an Attorney

It is a very common misconception that people believe once they have made a Will and appointed an Executor or Executors, that that Executor can act on their behalf if they lose mental capacity.

Similarly, people also believe that if they have been acting as someone’s Attorney during their lifetime, they can continue to act in the same way on that person’s death.

However, the reality is that an Executor appointed in a Will can only act on the death of the person who has made the Will (The Testator). The Will is of course a death instrument and can only be used on death.

An Attorney is appointed during the lifetime of the person (the Donee) making the Enduring or Lasting Powers of Attorney.  The Attorney can only act during the lifetime of the Donee.  If the Donee has made an Enduring Power of Attorney before October 2007 the Attorney(s) can register the document once the Donee is becoming or has become mentally incapable of managing their financial affairs and they will be able to make decisions on behalf of the Donee. If the Donee has made Lasting Powers of Attorney (which replaced EPAs in October 2007) for their Financial and Property matters the Donee themselves can register this straight away and the Attorney(s) can act as soon as it is registered with the Donee’s permission. If the Donee has also made a Health and Welfare Lasing Power of Attorney, this can be registered straight away, but the Attorney(s) cannot act until the Donee has lost their mental capacity.

The Attorney has the authority to act under these documents and make the necessary decisions until the death of the Donee. Upon the Donee’s death, the Enduring or Lasting Powers of Attorney are no longer valid and it is then that the Executor(s) in the Will must take over and administer the deceased’s estate. This could be the same person as the Attorney, but in many cases it is not.  If there is no Will, then an Administrator can be appointed by the Probate Registry.

For more information, contact our Private Client Department.

 

For more information on Lasting Powers of Attorney and Wills

Contact our Private Client Department on 01206 577676 or email [email protected]

5 Things to know about Pre-nuptial Agreements

5 Things to know about Pre-nuptial Agreements

5 Things to know about Pre-nuptial Agreements

1) What is a pre-nuptial agreement?
A pre-marital or pre-nuptial agreement (also known as a ‘pre-nup’) is a formal, written agreement between two partners prior to their marriage.

It sets out ownership of all their belongings (including money, assets and property) and explains how it will be divided in the event of the breakdown of their marriage. 

2) Are pre-nuptial agreements legal in the UK?

Currently, pre-nuptial agreements are not legally binding in the UK.

However, a judge is likely to take the contracts into account when overseeing a divorce case and uphold them. Following precedent set in the 2010 ground-breaking case of Radmacher v. Granatino, prenuptial agreements are now afforded heavy evidential weight within the UK Family Court, unless considered to be unfair.

However, while British courts recognise prenuptial agreements, they also still have the discretion to waive any pre- or postnuptial agreement,

For the agreement to be upheld, judges have to be sure certain checks were put into place.

This includes that both partners received independent legal advice, that they both fully disclosed their assets and that neither of them was under duress to sign the agreement.

Judges are not likely to take into account agreements signed less than three weeks before the marriage or contracts where the division of assets is not fair or realistic,especially if it’s deemed to be unfair to any children of the marriage.

3) Why get a pre-nuptial agreement?

Money can be an extremely emotive topic in a relationship, especially if you have different attitudes towards spending and saving. A prenuptial agreement provides a clear agreement that can lead to peace of mind for both parties.

You might think about getting a prenuptial agreement for the following reasons:

  • There are assets and/or property that would be hard to split 50/50
  • You, and/or your partner, have children from a previous relationship and want to ensure certain assets are reserved for them and protect their inheritance rights. (It is also crucial to make a Will for the same reason.)
  • You want to protect inherited money or assets
  • You want to safeguard substantial savings or expected future inheritance
  • You want some say in how financial issues would be resolved in the event of a marriage breakdown (especially if you’ve suffered unfairness in divorce courts previously)
  • Either party own a business which they’d like to retain control of
  • If your partner has outstanding debt, a prenuptial agreement with a ‘debt clause’ can protect you from being liable for that debt. 

4) What should be included in a prenuptial agreement?

Every prenuptial agreement is tailored to a couple’s particular circumstances; however it will usually contain an inventory of each partner’s assets, and details of how they are to be dealt with in the event of a marriage breakdown.

It may also set out post-divorce financial arrangements for children, particularly in marriages where one or both partners already have children from previous relationships. Courts will pay particular attention to any matters relating to children, and are unlikely to support any terms in the agreement that are deemed to be harmful to the interests of a child.

5) What happens to the assets if a marriage with no pre-nupends in divorce?

In the UK, the court sees the couple’s respective roles as “economic provider and child carer/homemaker as of equal value to the welfare of the family”.

This means that without a pre-nup, the starting point for the division of property and assets will generally be equality of assets between both parties.

While this is generally the fairest distribution of a couple’s assets, if any of the reasons for getting a pre-nup outlined in (3) above) apply to you and your partner, then a 50/50 spilt may feel unjust.

Pre-nup Checklist

There are a number of factors that need to be in place when you enter into a pre-nuptial agreement.

This is because, when considering if the agreement is fair and should be upheld, the court will look at things such as whether both parties understood it properly and if they had enough time to review it before signing.

We’ve put together a checklist to help your pre-nuptial agreement have the best chance of being upheld in a divorce court:

  • To comply with UK law, the pre-nup must be drawn up by a qualified solicitor
  • Both parties must have separate solicitors to avoid any claim of conflict of interest
  • Both parties must fully understand the agreement and voluntarily agree to it
  • Both solicitors must confirm it was entered into freely and knowingly
  • The prenuptial agreement should be signed at least 21 days before the marriage
  • All assets and property must be fully disclosed by both parties

How We Can Help

While pre-nuptial agreements are now legal and enforceable in the UK, they can still be overwritten or even thrown out of court.

At GoodyBurrett, we provide skilled advice on the steps you can take to reduce the possibility of costly arguments over property and other assets if your relationship does not work out.
Already married? Do not worry, it’s not too late, because a Post Nuptial Agreement will be treated in exactly the same way.

For just £99 + VAT we can offer you an initial consultation to provide preliminary guidance to enable you to decide on the best way forward. Contact our Family team for more information.

For more information on Pre-nuptial Agreements

Contact our Family Department on 01206 577676 or email [email protected]

Avoiding delays in the Conveyancing process

Avoiding delays in the Conveyancing process

Top five reasons for delays in the Conveyancing process – and how you can try to avoid them!

There are many causes of delays in the Conveyancing process, below are the top five causes and the ways in which we can work together to avoid them.

  1. Someone in the chain pulling out

One of the biggest causes of delay in the Conveyancing process is caused by somebody else in the chain pulling out of their sale or purchase. Unfortunately, this is one of the most frustrating delays as it is often difficult to avoid. Being flexible as to the completion date and responding to enquiries quickly so that any issues can be dealt with can help to avoid this.

  1. Returning papers

A delay which is completely avoidable on the other hand, is when buyers / sellers do not prioritise returning initial paperwork (and funds on account) to their fee earner. A solicitor cannot begin acting for someone until signed paperwork and funds on account are supplied.  Ensuring that you read the initial paperwork carefully, signing it and returning it to us (with the requested sum) at the earliest opportunity enables us to commence acting on your file straight away. Remember: we cannot prepare or receive the contract pack on your transaction until you have returned these documents to us.

  1. Local Authority searches

Local Authority searches take the longest of all the searches to be returned to solicitors. Some areas locally take 2 -3 weeks to return the information we request. Whilst unfortunately you cannot demand that the Local Authority prioritise your search, ensuring that you instruct us as soon as possible and putting us in sufficient funds to be able to issue the searches on your behalf means that the Local Authority search can be issued at the earliest opportunity; the sooner the search is issued, the sooner it will be returned.

  1. Mortgage offer expiring

Mortgage offers are usually valid for between three to six months, if your mortgage offer expires before the legal requirements of purchasing the property are complete, a new mortgage offer will need to be obtained. The expiry date of your mortgage offer should be kept in mind during the transaction, and we will make a note of this date on your file. If the expiry date is getting close and we advise you that the legal requirements for the transaction will not be completed in time, you may be able to ask your mortgage company to extend the mortgage offer for you. Keeping us up to date with the situation can ensure that this does not lead to a delay.

  1. Obtaining the management pack for leasehold properties

A management pack for a leasehold property is produced by the managing agent acting for the management company. Sometimes we also need a pack from the landlord too. Obtaining the management packs can often cause a delay due to the volume of information that must be supplied. Ensuring a timely request for the management pack to be provided can minimise the delay; provision of a management pack incurs a cost and accordingly, ensuring that you have provided the funds necessary for obtaining the pack to us as soon as possible can minimise the delay.

For a free Conveyancing Quote contact

GoodyBurrett’s Conveyancing Department on 01206 577676 or email [email protected]

Five Reasons to Have A Shareholders Agreement

Five Reasons to Have A Shareholders Agreement

Five Reasons to Have A Shareholders Agreement

We work with many companies in putting together Joint Ventures and setting up businesses where there is more than one shareholder.  Unfortunately, we also spend a moderate amount of time assisting shareholders who have fallen out with each other.  Where shareholders fall out the position is made substantially more complicated, and expensive to resolve, when a Shareholder Agreement is not in place. We set out below five key reasons why you should consider putting in place a Shareholders Agreement for your business.

  1. Shareholders Sometimes Fall Out

When a business launches, the shareholders are almost always in alignment with each other.  The enthusiasm for taking a new business venture forward very often means that the shareholders will not give any consideration to what might happen if they fall out with each other and stop agreeing with one another. 

Where a company is owned 50/50 between two shareholders, if they stop agreeing with each other the company can very quickly find itself in a deadlock situation.  In such circumstances the business of the company can quickly grind to a halt.  A Shareholders Agreement assists by providing a pre-agreed mechanism for resolving any such deadlock. 

Where you have more than two shareholders, it is sometimes the case that multiple shareholders gang up against a minority shareholder and take decisions that they do not agree with. A Shareholders Agreement can protect all parties by ensuring that certain key decisions can only be carried through with unanimous consent. 

  1. Protection for Minority Shareholders

Any shareholder that owns 51% or more of the company essentially has control of that company. Subject to certain limitations that are set out in the Companies Act 2006, that shareholder can essentially run the company as they see fit.  A Shareholders Agreement can protect against this by requiring that all parties must agree on certain matters which otherwise may be prejudicial to one or more of the minority shareholders. 

  1. Business Direction

A Shareholders Agreement is an opportunity for the shareholders to set out how the business will be run and what each shareholder will be responsible for within the business. Setting out this type of matter at the outset ensures that shareholders share a clear and documented vision as to how the company will progress and what is expected from each of them.

  1. Controlling the Transfer Of Shares

Without a Shareholder Agreement a shareholder will not be restricted in relation to how they may transfer their shares.  A shareholder may not be happy with the prospect that their fellow shareholder could transfer their shares to any third party.  A Shareholders Agreement can ensure that all shareholders benefit from a right of first refusal.

  1. Resolving Disputes

Where a dispute does arise within the company, there is no default mechanism for resolving that dispute. Very often, where shareholders reach a stalemate or fall out, the matter will be referred to a Solicitor.  Legal proceedings can become expensive and generally will lead to a division between the shareholders increasing.  A Shareholder Agreement is a great opportunity to put in place a procedure for Alternative Dispute Resolution.  This can be Mediation or Arbitration.  Either way the mechanism usually acts to assist in getting the shareholders to find common ground.

The above are just five of the key reasons why we recommend that all companies that are owned by one or more shareholders put in place a Shareholders Agreement. 

Here at GoodyBurrett our team has over four decades of experience in advising companies and shareholders.  If you think that your company would benefit from putting in place a Shareholders Agreement, please get in touch for a no obligation discussion with either Stephen Avila or David Cammack from our business team.

For more information on Shareholders Agreements

Contact Stephen Avila or David Cammack from our business team on 01206 577676 or email [email protected]