Death in divorce

Regardless of any animosity during divorce proceedings, the death of an estranged spouse can be incredibly distressing, not least because this can create even greater uncertainty within an already difficult and complex process. Below we look at why.

What are the rules relating to death in divorce?

In divorce proceedings, you will remain legally married until the final decree in the divorce is pronounced, ie; the decree absolute. If, however, your spouse passes away prior to this point, this will automatically bring the marriage to an end. That said, even though the divorce in itself will no longer be needed, this doesn’t necessarily resolve any outstanding financial issues in your favour.

Equally, if the decree absolute has already been pronounced prior to your spouse dying, but you have not yet finalised the division of assets, the death of your former spouse can result in an even less favourable financial outcome for you.

The timing of any decree absolute, and whether or not any financial agreement has already been reached at the point of death, is therefore crucial here. In particular, if your spouse dies, then the question of whether you were still legally married is hugely important, as this will affect how the deceased’s estate is distributed. 

What happens if my spouse dies before we are divorced?

If your spouse dies before the decree absolute is made, legally you will still be classed as married at the time of death. This means that you will inherit in accordance with the provisions made by them under any last will and testament, or where they died without making a will, under the rules of intestacy.

In cases where your spouse died intestate, this may result in a more favourable outcome for you than under any proposed financial settlement, especially if there are jointly owned assets. If, on the other hand, the deceased had a will that disinherited or made inadequate provision for you as the surviving spouse, you will have lost the benefit of being able to make a financial claim on divorce.

It would still be open to you to bring a claim against the deceased spouse’s estate under the Inheritance (Provision for Family and Dependants) Act 1975, but there is no guarantee of success, as this may be challenged by other beneficiaries.

It is also worth noting that if a financial order has already been put in place at the time of death, either by consent or through contested proceedings, that order will now be wholly unenforceable. This is because a financial order will only become enforceable once a decree absolute has been granted, and a decree absolute cannot be granted when one spouse is deceased.

What happens if my spouse dies after we are divorced?

In circumstances where the decree absolute has already been granted but there is no final financial order at the point that your former spouse dies, you would again not be able to bring a financial claim under the Matrimonial Causes Act 1973.

You would also no longer be eligible to inherit under the intestacy rules, where property would normally pass to a spouse, as well as being unlikely to inherit under the terms of any will, especially where any previous will had been revoked and replaced by your former spouse following the divorce.

This would therefore leave you making a financial claim under the Inheritance Act 1975. In these circumstances, this would be limited to maintenance, which could make a considerable difference to any financial outcome you would have otherwise received on divorce, especially where the majority of the matrimonial assets had been acquired in the sole name of your former, and now deceased, spouse.

Needless to say, given the importance of the timing of any decree absolute, and a final order for financial provision on divorce, it is always best to seek expert legal advice at the earliest possible opportunity.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Administering an estate – can you do it yourself?

If a loved one has recently passed away, and you have been named as an executor of their will, assuming you are willing and able to act in this capacity, the legal responsibility will rest with you to administer the deceased’s estate.

This may seem like a daunting prospect, especially if the deceased owned a number of different assets, in which case you would be well advised to secure the help of a legal professional. In more straightforward cases, however, this may be a matter that you are more than capable of undertaking yourself.

Below we examine how easy it is to administer an estate without a solicitor.

What does it mean to administer an estate?

In most cases, before you can even begin to deal with the deceased’s estate, you will need to apply for a grant of probate. Probate is the legal process in which you are officially granted the necessary permission to deal with someone’s financial affairs following their death. This is called ‘administering the estate’.

This includes settling any debts, taxes, funeral expenses and administration costs, and thereafter passing on any remaining property, money and assets, ie; the residue of the estate, to the beneficiaries named under the deceased’s will.

That said, for a small estate, a grant of probate – or where the deceased didn't leave a will, letters of administration – may not be needed. This could be, for example, if the deceased didn’t own any property or assets outright, where any jointly owned assets such as the matrimonial home will pass automatically by survivorship to the deceased’s spouse or civil partner. It could also be where the amount of savings held in any account fall below £5,000.

However, a grant of probate or letters of administration will usually be required to sell or transfer any property held in the deceased’s sole name, or where property is owned jointly but as tenants in common rather than as joint tenants.

How easy is it to administer a deceased’s estate?

You can apply for a grant of probate if you are named as an executor in the deceased’s will. If the deceased died intestate, ie; without a will, you can apply for letters of administration as either their next of kin or close relative.

The actual process of applying for a grant of representation is not, in itself, especially difficult. However, there are various matters that must be undertaken in discharging your legal duty as an executor or administrator prior to even submitting your application to the Probate Registry.

This includes valuing the deceased’s estate for the purposes of inheritance tax liability, including offsetting any debts and liabilities – a process that can become especially complex depending on the beneficiaries and sums involved – and obtaining permission from HMRC to proceed with your application for a grant of representation where inheritance tax falls due.

Following the grant, you will also be tasked with liquidating any assets and distributing the estate accordingly, not to mention finalising any income tax position to the date of death and for the post death administration period.

How important is it to seek expert legal advice?

As an executor named in the deceased’s will, or the deceased’s next of kin, you do not have to administer an estate by yourself, where it is perfectly permissible to ask a solicitor to do this on your behalf. You will also be entitled to recoup any legal expenses incurred out of the estate.

By instructing a solicitor, you will absolve yourself from any personal liability arising out of any mistakes that you may inadvertently make in administering the estate yourself. A trained legal professional is also far more likely to identify any tactical advantages of approaching the valuation and distribution of the estate in a certain way, for example, reducing any capital gains tax liabilities.

Ultimately, therefore, for peace of mind and the avoidance of error, in the majority of cases it is best to seek expert advice and assistance when faced with the important responsibility of administering the estate of a loved one.

To speak to a specialist Probate Solicitor in Lancaster or Preston please call 01524 386500.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Who gets the dog on divorce?

When facing divorce, one of the most acrimonious issues for couples can be the division of assets moving forward, especially when it comes to any beloved pet. In fact, custody battles of pets are becoming increasingly common.

Below we look at the rules relating to pet custody on divorce.  In particular, how any disagreement as to ownership will be dealt with and what factors the court may take into account when a dispute arises as to “who gets the dog”.

What are the rules relating to custody of pets?

For many, the idea of their pet dog or cat, or indeed any other domesticated animal, being treated as legal property may seem a little strange, especially when these animals are often perceived by their owners as close family members. In England and Wales, however, the law essentially considers a pet to be what’s known as a chattel, ie; a tangible and moveable asset.

This means, at least in theory, that a pet will be treated like any other item of personal property on divorce, such as a car or a piece of jewellery. This also means that there is no specific legislative provision as to custody entitlement of a pet.  Where a dispute arises over ownership of an animal the court is bound to determine this issue based on the rules of property law.

How do the courts deal with pet custody battles?

Unfortunately, there is very little case law on pet custody matters, although given the limits of the law in dealing with this difficult scenario this will usually only arise as an ancillary issue within financial proceedings following a divorce.

For example, in the case of RK v RK [2011] EWHC 3910 (Fam), the wife made a claim to the family dog within the context of her overall financial claim. That said, whilst the court reaffirmed that animals are akin to personal property, the judge refused to make an order that the dog should live with the wife, as the husband had been principally responsible for the dog’s care.

Arguably, this could suggest a slight shift towards the courts recognising pets as living and sentient property, where a judge may be influenced by factors including, for example, the emotional bond between pet and primary carer.

That said, especially where an animal has significant financial value, and even more so where an income is derived from breeding a pedigree pet, any sympathy that the court may otherwise have for either party is unlikely to prevail over property law considerations when considering a fair financial outcome.

How should a pet custody dispute be handled?

If agreement cannot be reached between a divorcing couple as to the living arrangements for any pets, there remains every possibility that any animal will merely be viewed as personal property by the courts, to be factored into an overall financial settlement, without regard to the emotional attachment of either party or the special social status that pets are given by their owners.

It is therefore always best to reach an amicable agreement when it comes to pet custody, ideally with the help of an expert legal advisor, especially as the approach of the courts, and the sympathy of the judge, cannot be guaranteed.

For expert advice on divorce and family law please call 01524 386500 or email enquiries@bsglaw.co.uk

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought. 

How can I take advantage of the stamp duty holiday?

On Wednesday 8th July Chancellor Rishi Sunak announced a temporary holiday on stamp duty on the first £500,000 of main home property purchases in England and Northern Ireland until March 31st 2021, along with savings across the board for people buying second homes, buy to lets, and investment properties. This move has been welcomed by the property industry and home movers who will be able to save up to £15,000 in tax.

If you’re a hoping to take advantage of this saving and you need to sell your current home then time is of the essence.

Though there are many variables that affect the time it will take you to find a buyer (location, property type, condition) according the Post Office’s Rate of Sale tool the average UK property currently takes 114 days to sell. The conveyancing process to complete the sale and purchase can sometimes be a relatively quick turnaround of two months, but in more complex transactions or long chains this timescale can easily stretch to four months.

That means a total time scale of around 7 months should be allowed for. The stamp duty holiday lasts just under 9 months, which means if you’re still thinking about selling you need to move quickly and get your property on the market.

We would recommend that you instruct us as your Solicitors as soon as you list your property, we can then put you in the best possible position to achieve an early completion.

For buyers without a property to sell, you should still instruct us as soon as possible once you’ve had your offer accepted as we expect the next 9 months to be extremely busy. Conveyancers will undoubtedly become inundated with cases following Christmas – all wanting to complete by 31st March!

To get moving please call 01524 386500 or email enquiries@bsglaw.co.uk for a free no obligation conveyancing quote.

Executors Warned Not to Hold Off on Probate

BSG Solicitors have warned that executors and beneficiaries could be facing a lengthy wait if they hold off applying for Grant of Probate.

Last year grieving families faced delays of three months or more to due to software problems at HM Courts and Tribunals Service (HMCTS), plus a spike in demand due to the proposed hike in probate fees, which was later scrapped.

The Government has revealed that applications for grants of probate have fallen by 50% since 23rd March 2020, but as the lockdown eases there is expected to be a surge in applications due to the impact of the pandemic and lockdown. HMCTS have stated they will recruit more staff to process probate applications if needed, but it is unclear whether this would again result in a backlog and further delays.

Rebecca Lauder, Partner commented:

“Delays during the estate administration process cause additional stress during an already difficult time for grieving families. It is currently taking a number of weeks to receive a Grant of Probate and we can see this increasing if people continue to hold off starting the process.

Dealing with matters following a death is emotional and challenging at the best of times and due to the pandemic, it seems people have been unsure how to proceed. Although certain elements have been adapted to reflect the social distancing measures in place, it is still possible to carry out the probate process.

In addition to delays with HMCTS, requests for information from banks and other financial institutions is taking longer than usual so we are urging executors to start the process as soon as possible.”

BSG Solicitors have taken all necessary precautions with regards the safety of clients and staff. Very limited face to face contact is required, if any, when dealing with probate and in most cases it can be dealt with over the phone, video calls or email.

For advice on Probate please call 01524 386500 or email enquiries@bsglaw.co.uk.

Coronavirus: Separated Families and Contact with Children in Care FAQs

The House of Commons have released responses to some of the frequently asked questions regarding separated families and contact during the coronavirus pandemic. This covers:

• Can children move between the homes of separated parents?

• How should parents comply with a court-orders for contact?

• How are child maintenance payments impacted?

• Can I visit my child in care/residential home?

• My child contact centre is closed: What alternatives are being made?

• Where can I go for help and advice?

To download the guide please click here.

If you require further advice please call 01524 386500 or email enquiries@bsglaw.co.uk

Housing Market Set To Reopen

From today estate agents’ offices can open; viewings are permitted; show homes can open; removal companies and the other essential parts of the sales and letting process are re-started with immediate effect.

Since lockdown restrictions were implemented in March, an estimated 450,000 people have been unable to progress their plans to move house. All buyers and renters will now be able to complete their moves.

A new Charter has also been launched by the Government and the Home Builders Federation, helping construction sites reopen in line with latest health and safety guidance. Construction companies signing up to the Charter commit to returning to work safely, including working with their subcontractors to implement social distancing, as well as detailed safe working practices.

Rebecca Lauder, Partner at BSG Solicitors commented:

“This is positive news for the housing market in general and particularly for thousands of people across Lancashire who have been waiting to complete their move. Our property department has continued to operate throughout lockdown, moving clients towards exchange of contracts and we are now ready to get them into their new homes.”

The full list of activities now permitted in relation to the property market are:

• Visiting estate or letting agents, developer sales offices or show homes

• Viewing residential properties to look for a property to buy or rent

• Preparing a residential property to move in

• Moving home

• Visiting a residential property to undertake any activities required for the rental or sale of that property

For further information please call 01524 386500 or email enquiries@bsglaw.co.uk

Care Worker Recovers Compensation

We recently acted successfully for a care worker who worked in an assisted living facility for adult males with mental health issues or learning difficulties. Our client sustained serious injuries, both physical and mental, as a consequence of a violent attack from a service user. Our client was also required to take a significant period of time off work to recover from her injuries.

Liability was denied by the employer’s insurance company however our Solicitors vigorously pursued the case using their expert knowledge of personal injury law and secured a substantial settlement for our client including a significant sum in respect of lost earnings and the cost of future psychological treatment.

Our dispute resolution Solicitors specialise in personal injury matters whether they are injuries sustained at work, on the road, on private property or in public places.

If you are considering making a claim for compensation, please telephone us on 01772 253841. We will be happy to discuss your case and the process of making a claim with you.

Innocent Passenger Secures Compensation

Idris Dawjee recently acted for a client who was seriously injured in a road accident sustaining a spinal fracture and a wrist fracture which required surgery. Our client was a front seat passenger in a vehicle driven by a friend. The driver of the vehicle drove at an excessive speed and collided into a parked van as he attempted to drive through a sharp bend in the road.

Idris pursued the claim robustly and negotiated a substantial settlement, which included payment for lost earnings and rehabilitation treatment.

Our dispute resolution Solicitors specialise in personal injury matters whether they are injuries sustained at work, on the road, on private property or in public places. If you are considering making a claim for compensation, please telephone us on 01772 253841. We will be happy to discuss your case and the process of making a claim with you.