My father died recently and we can’t find a Last Will, though we are pretty sure there was one.There are two children, me and my brother. We had a sister who died 15 years ago and she had 2 children. Just to complicate things, after my father’s death a friend of his informed us that one of her sons was actually my fathers son as well. Under the rules of intestacy he would be entitled to an equal share as myself, my brother and my deceased sisters children. The friend says her son doesn’t want anything but the Law doesn’t says he is entitled. I accept that myself and my brother and my deceased sisters children should be beneficiaries but don’t feel this person who has had nothing to do with him had the same share as me following my fathers death.Have I any chance of successfully obtaining a deed of variation?
Your Deed of Variation Question Answered:
A Deed of Variation must be agreed firstly by the person who is giving something up, as well as by the Court if they are under 18.So that is unlikely to work.Under Intestacy, the children of the brother who died would inherit half each of his share.As far as the “new” brother is concerned, he will potentially inherit as long as he was not legally adopted into the family he considers his. (If he was, he is no longer eligible for a share.)Just saying that he is your fathers son is of course not adequate. Genetic testingwould prove or disprove such a claim, as paternity is sometimes wrongly attributed.It does sound as if this would be a case best handled by professionals such as ourselves before tempers run too high! The answer is just a basic one, and things may get more complex.More on Deeds of Variation.
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Question: Advice on Deed of Variation Conflicts – HELP! A reader has received advice that conflicts and has asked us to review the conflicting responses and advise which (if either) is the right advice. Here goes the question and the advice which had already been received. It is son important to deal with a professional who is active in this area, rather than one who does one very couple of years – if you need one, do contact us for a recommendation to a suitable specialist/”I have been given conflicting advice by two solicitors on whether or not I can have such a Deed prepared. This is what one said:1) “For a variation to be effective it needs to take place within two years of the death. More importantly, all the Executors and Beneficiaries will need to agree that the variation can take place. If they cannot all agree, the Deed of Variation shall not be valid”.The other went on a slightly different tack:2) “Another example where a variation might assist is where a parent leaves their estate equally between their children. The children may well be wealthy in their own right and would not want to benefit from the estate as it would simply increase the potential Inheritance Tax (IHT) liability upon their own death. If this is the case, and it can be agreed, then the deceased’s grandchildren could benefit instead, therefore bypassing the children altogether. However, if the grandchildren are under the age of 18, the Court would need to approve such an arrangement.”Can you confirm the situation?Kind regards.L
Our response: Advice on Deeds of Variation Conflicts (via our former solicitor).
Both are nearly correct, but have missed important information out in paraphrasing so are unintentionally misleading.Clearly it is important to deal with a firm which regularly creates Deeds of Variation and fully understands them and their uses (i.e. us!)
Answer 1) Who has to agree to a Deed of Variation?
Only people affected negatively by the Deed need to agree – that is, those folk who are giving up something they could have received under the terms of the Will or intestacy. It is nothing to do with anyone else.
Answer 2) Issues over Children and Deeds of Variation
Court approval is only needed if the affected beneficiaries (those giving up something) are under 18 which doesn’t mean that the people benefiting from the Deed of Variation, can’t be under 18 – the age limit is for those giving something up. That said, there are special issues with children in that they cannot give a valid receipt, so the inheritance needs to be kept in trust until they are 18 or marry (if earlier.)Not at all what they seem to be saying in 2) above, but perhaps they go on to qualify their answers.So if the first one added “affected” after all the, it would be correct.The second one would need to remove “grand” from grandchildren to be correct.More on Deeds of Variation (also known as Deeds of Family Arrangement). More on Probate Disputes.
]]>Special expertise is required where a business owner dies. Or indeed, loses the ability to make decisions due to accident or illness. Our probate and estate planning barrister will be happy to have a quick chat with you to see how urgent action is, as this will depend on the structure of the business. What needs doing will also vary. She can better advise you in advance, to make sure there is a proper succession plan and all the necessary documentation in place – death or disability can strike unexpectedly.When a small business owner dies, it is quite possible that the business will fail unless very rapid action is taken to allow the executors or administrators to continue running the business. So it is important that the advance Legal Planning takes the issues for the family and employees into account and is reviewed as circumstance change over the years.In many cases, as soon as the bank learns of the death, bank accounts will be frozen. This would lead to staff and creditors not being paid, for perhaps 6 to 9 months which would clearly be a disaster. As far as shareholders in limited companies are concerned and the death of a partner in a business, then the issues are quite different from those of sole owners. But they can be much more complex, and the needs for advance planning even more crucial. Many a widow or widower has expected a handsome sum from the sale or continuation of a business and received not a bean, because the basic precautions were not made. So if you are married to a business owner, it is up to you to make sure they have guaranteed your situation as far as possible. Exactly the same applies if you work for a business run by the owners (and indeed in some larger businesses.
Death of Business Owner: rapid action needed.
What is needed is prompt action to secure the authority to carry on running the business so as to preserve it as an asset and a legacy for those who will inherit.This action needs to be taken very quickly before panic starts to set in amongst staff and suppliers. As far as staff are concerned, the best ones will find it easier to get new jobs quickly, potentially leaving a business crippled by the loss of what remained of the experienced and senior staff now the business owner is no more.All business owners should have a succession plan in place and where possible, staff who can carry on despite the death of the business owner or their disability for a significant period. It may be just a few days before the business starts to unravel, and both the value and the jobs vanish for ever.Remember, the business can’t even be sold until probate has been granted, so keeping it going in the meanwhile is crucial. And it is not an issue which many firms will have the expertise to deal with.We can offer advice both in planning terms for the death or disability of the business owner and for sorting things out if the necessary planning is not in place.
Disability of business owner – big problems without advance planning.
Strangely, the disability (in the sense that they are not able to make decisions temporarily or permanently, typically through accident, stroke or mental health issues) of the business owner is far harder to sort out quickly than their death, and the planning is often fairly inexpensive and can be paid for by the business. It is however a fairly slow process as bureaucracy plays a big part.So either way, please contact us and we will endeavour to sort things out for you as economically and rapidly as possible. The death of a business owner can be a disaster, and is best planned for (contact our Estate Planning department) but requiries immediate action if it is too late to plan.
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