5 reasons why mediation is the best way in marriage breakdowns

5 reasons why mediation is the best way in marriage breakdowns

No matter how difficult it may be, divorcing couples should consider the benefit of mediation over any other form of dispute resolution. While it’s sometimes difficult to mutually agree on decision, there are a number of reasons why it is for the best.

Perhaps unsurprisingly, there has been huge rise in divorce rates during the COVID-19 pandemic and the various lockdowns. With many couples forced to spend more time together in the enclosed spaces of their home, alongside additional worries such as childcare constraints and money issues, it was only inevitable that such an event would lead to the dissolution of many relationships.divorce case mediation

In 2019, the divorce rate was at approximately 7.5%; but, nine months into 2020, it was found that the rate was up to roughly 33.3%. Deciding to track just how much enquiries increased during the pandemic and the varying lockdowns, one UK law firm saw a 122% increase in the amount of enquiries they received between July and October 2020.

Despite these difficult and unusual circumstances, one thing remains consistent – you should always look for a peaceful resolution to your relationship. While the pandemic has increased volatility and emotional turmoil, mediation remains the best way to navigate a marriage breakdown.

What is mediation?

Irrespective of whether a person is happy or sad to be getting divorced, there’s one part of the process that no-one looks forwards to – the legal separation. It is a heartbreaking time for all parties involved and the fear of going through a divorce is compounded with the thought of signing off documentation, going through intermediaries and, eventually, the dreaded and costly appearances in court.

This is where alternative dispute resolution comes in. These are the processes that can be approached to successfully navigate a divorce without having to go through lengthy court appearances. While there are a number of alternative dispute resolution approaches, the first one to try should always be mediation.

This is where you and your partner talk in a face-to-face manner with a trained, impartial mediator who will try and aid both of you in making mutually satisfactory agreements. It can also happen with both parties in separate rooms. The mediator will talk to you both to understand your perspectives, your individual priorities, the misconceptions or problems that could arise, and offer up ideas for solutions.

It is not the mediator’s job to tell you what to do – they are simply there to facilitate an agreement and to act as someone to bridge the divide between both you and your partner. However, it’s important to note that they will not step in to act in any party’s interest. Should you wish to have someone there who will think through the consequences on your life, you can hire a consulting attorney to help.

Five of the top reasons why you should go to mediation

There are a number of reasons as to why mediation is the go-to strategy when you are looking to settle a divorce; however, there are some reasons that stand out above others. We’ve compiled the top five reasons why the next step in deciding to separate from your partner should be mediation.

1. Costs less time and money

Both the monetary and time cost of mediation is a huge selling point over other forms of divorce settlement such as collaborative divorce and litigation. It currently costs £550 to file a court petition for divorce and solicitors can cost approximately £300/hour in the courtroom. And even before you get to court, you could even be paying as much as £100/letter in the protracted communications between you and your partner’s solicitors.

Not only that, but you also have to consider the cost of post-divorce living – especially if you have children. When all is said and done, you could have already racked up thousands of pounds worth of fees before you’ve even set foot in a courtroom! However, with mediation, you’ll either pay a by-the-hour or flat rate so you needn’t have many worries about costs spiralling out-of-control.

When it comes to time, legal proceedings can last anywhere between months to years, depending on the schedule. Currently, this is being made worse due to restrictions resulting from the COVID-19 pandemic as there was already a backlog before the pandemic. Mediation, however, is relatively quick and can be tackled within just a few weeks or, at worst, months – generally anywhere between two to less than 10 sessions.

2. You have more control

There can be nothing worse than feeling as if you’re not in control of how proceedings are going. Sadly, this is the case for many couples going through the agonising process of divorce proceedings in court. However, with mediation, you’ll find that you can have more input and less need to deal with rules or judges that don’t fully understand or empathise with your situation.

A mediator is not there to tell you what to do. Mediators are merely there to guide you and understand the priorities and wants of either party, and help you out when a compromise is needed. In closing, the mediator will produce a Memorandum of Understanding as well as an Open Statement of Financial Information. The former outlines the outcomes and the agreements by both parties, while the later is to enable a financial order to go through the courts.

3. Less animosity and stress

One of the most feared repercussions of divorce is the strained relationships that can occur not just between the couple, but the children and extended families. Mitigation  severely reduces this strain versus litigation as mediators are trained in counselling and are able to acknowledge the feelings of both sides.

This approach allows for the possibility of a relationship between the couple once the divorce has been finalised. This is even more crucial if children are involved in the divorce. Not only does it set a good example, but it’s important as parenting duties will continue beyond the split and this ensures your children get the best life possible. The mediator will be there to clarify things – such as where the kids go for school holidays or on weekends – in a way that is perfectly clear to both parties.

A mediator essentially makes sure there are no crossed wires and that no one person will dominate proceedings. They will prompt you to think things through, think with more empathy, reduce any argumentation to a minimum and make commentary when necessary. There is no need for there to be a ‘winner’ and a ‘loser’, as in court cases.

4. No public record

For those that like to keep things private, mediation offers the best way to do that. Matters are kept undisclosed and are not a matter of public record. If you pick an experienced mediator, you can rest assured that they will have dealt with hundreds of case anonymously and you needn’t worry about matters ever being disclosed beyond you, your partner and the mediator.

This means that even if there are disagreements or impromptu shouting matches, no-one will be any wiser. Your mediator will be bound by the Family Mediation Council’s code of conduct and policies that ensure that all info regarding the mediation is destroyed following completion. The only information that is retained is very basic to keep in line with the Data Protection Act and other relevant legislation.

5. You still have the option of court

It should be noted that even if the mediation process were to fail, you still have the right to litigate. As established above, mediation is a confidential process and mediators cannot be called to discuss the details of the mediation process. The only exception to this are any written agreements that were signed or any financial affidavits.

Do keep in mind the cost of money, time and energy that occurs when you choose to go to court. Mediation should always be the first and, in almost all cases, last step in divorce proceedings.

Foys mediation solicitors are here to help

At Foys Solicitors, we have our own specialist team of experienced mediators who have helped hundreds of families through their divorce process. We do this in three stages which we outline to all of our clients before any proceedings begin so you are fully aware of what is to come.

Our team has full Family Mediation Council accreditation and Family Mediation Association membership, meaning they have the best skillset and training for the job to ensure that your mediation process has every chance of succeeding. You will find our mediators to be outstanding – empathetic, caring, understanding, non-judgemental and legally qualified to help guide you and your partner through this difficult process.

To learn more about our mediation services and to get your FREE initial consultation, simply call Foys today on 01302 327 136, contact your nearest local office or fill in our online enquiry form on our Contact page.

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Regardless of Covid, don't be tempted to stop spousal payments

Regardless of Covid, don't be tempted to stop spousal payments

The COVID-19 pandemic has been an emotionally and financially fraught time for everyone and, unfortunately, some relationships have also been causalities to the carnage. If you’re dealing with divorce or divorce payment problems during this time, it’s important to seek a resolution.

Everyone is feeling the impact of the pandemic and lockdowns of varying severity. However, there are certain groups who are being forgotten about amongst news of vaccines, the NHS and businesses – one of which is people who are either paying or receiving spousal payments following a divorce, or are in the midst of the divorce process.

If you’ve found your way here, there’s a good chance that you’re amongst this group. You may have lost your job or been furloughed, leaving you worried about how you are going to keep making spousal or child payments. You may be concerned that your ex-partner is about to suddenly stop making payments. Perhaps this has already happened. Or it could be that you are currently going through divorce proceedings and you have been left in limbo because of financial changes that are going to limit your ability to make or receive payments.

These precarious positions cause even more problems that can lead to a breakdown of any cordial relations between you and your ex-spouse or soon-to-be ex-partner. If you’re feeling tense about any of the above issues, it’s important that you seek out good legal advice that can not only help inform you about what to do, but can help ease these tensions and allow both parties to see each other’s perspectives in a calm manner. This is part of what we do at Foys.

But before we get to that, it’s important to walk through this situation, remind you that you are not alone in this struggle, discuss the ramifications of electing not to work with your ex-partner during this process, and establish why it is so important to avoid getting yourself in hot water with the courts.

The effects of the pandemic on divorce

Whether you were in the midst of divorce proceedings when COVID-19 hit hard, you’ve been divorced for a long time or the strain of lockdown propelled you and/or your partner to end your marriage, it’s not hard to understand why things have become much more heated between two people who were previously a couple. Worldwide rates of divorce, and sales relating to divorce-related legal proceedings, have seen major increases. In the UK, one law company found that inquiries into divorce had increased during periods of 2020 by well over 100% when compared to the same period of 2019.

It’s a staggering rise that suggests many are struggling to keep their relationship together whilst in lockdown. However, even Sweden, which tried to approach the pandemic with a non-lockdown approach, has also demonstrated similar trends. The effect of financial strain caused by the global situation cannot also be overlooked. This is something that people who are making – or are in the process of setting up – spousal payments will be all too aware of right now.

Whether a divorce has been brought about by changing financial circumstances, being around a partner too much, lockdowns causing untenable and unliveable situations for some people, or the pandemic making people think twice about what they want their post-pandemic life to look like, there’s no doubt about the correlation between the pandemic and divorces.

How divorcees and children are being affected

For people who are currently experiencing fear around making or receiving payments, the cause of this tension is also likely to be something out of their control. We know from an up-to-date YouGov poll that over a quarter of people who divorced over five years ago have reported dealing with conditions affecting their mental well-being – such as depression and anxiety. And when it comes to more recent divorcees, these mental health problems were present in nearly half of all respondents.

So even without considering the pandemic, we already know that people struggle during divorces. And now with the pandemic causing not only a loss of jobs, but people who have seen their investment portfolio hit an all-time low, substantial outgoings – such as maintenance payments – are going to seem absolutely untenable. Unfortunately, all of this has a knock-on effect on the partner who is receiving the payment too. Worry can set in when they hear that their ex-partner is in financial difficulty as this may also affect their quality of life, as well as their children’s quality of life, too.

And these aren’t the only problems. Access to children has become an even more difficult issue to navigate as some people are not allowing their previous partner to see their own kids for safety reasons. Or there is a partner who previously took the children at weekends who is now refusing to do so because they may now live with dependents who have underlying health issues that make them vulnerable to COVID-19. The whole situation is a veritable minefield.

Whether the pain of divorce resulting from the pandemic is from fresh verbal jousting or old wounds that have re-opened, it is clear is that mediation is always the best step you can take to try and solve divorce-related problems. The YouGov survey found that nearly two-thirds of all respondents agreed that had they accessed professional, legal advice at the start of divorce proceedings or when problems with an ex-partner first arose, their personal experiences would have improved.

The legal perspective

Divorce lawyers, such as the team here at Foys, are seeing a huge increase in people making all sorts of enquiries relating to divorce – both from old and soon-to-be-old marriages and civil partnerships – during the pandemic. It’s always a good idea to involve a divorce/family lawyer as soon as possible in the process due to the emotional nature of divorces.

From our perspective at Foys, we care about your mental health. Matters regarding divorce and family are never easy and our family lawyers have the speciality and experience to move at your pace. We’re that honest voice at the end of a call that you can rely on to help guide you through this difficult time. It’s important to keep emotions in check when dealing with your ex-partner or their legal representatives. We’ll always be the people who are going to look out for your interests, the interests of your children, and the interests of all parties involved.

We will always try and keep things out of the courts. This is something that can be achieved by conversing with your former spouse through a mediator in the form of a trained, professional lawyer. During the pandemic, this is even more important as the financial situation may make it impossible for one partner to make the payments they were previously making. There is no point going to court to fight for money that isn’t there.

In that instance, nobody wins from a financial or a mental and emotional perspective. However, should this process fail, you will likely need to get the courts to review the maintenance agreement and adjust any payments. However, you need to be able to prove – rather extensively – that these payments have to be reduced.

Knowing what you can and can’t do

It’s important to realise that you are on dangerous ground if you suddenly just stop child maintenance payments to your ex-spouse – especially if you do so without notifying them. If you already have a pre-existing agreement, you need to take every possible action to honour that agreement. Transparency and honesty will always reflect well should the case have to go to the courts, and this applies to both sides.

If your arrangement was made recently (i.e. within the past 12 months), then you cannot just stop these payments. If you are over this period and you do not make a payment, you do risk enforcement. However, if you are able to genuinely prove that you cannot make the payments – such as a demonstrable loss of income or employment – then the court may choose to wipe (either in part or in full) the payments that have accrued over the duration of that time.

Regarding spousal payments, if you do stop these then you need to be able to demonstrate that you are making changes to your lifestyle and that your personal expenditure is reduced. As with child maintenance payments, you leave yourself open to enforcement should you already have a pre-existing agreement. You will need to talk to your ex-spouse to agree upon a temporary reduction, or seek a court agreement.

Collaborative law is the process that the team at Foys will attempt to go through before taking matters to the courts – seeing us take on the role of an impartial mediator to the dispute.

The current court process under Covid

Should any mediation process fail, then you are bound to end up in the courts. Currently, the courts are struggling under the pressure of not just the increased amount of divorces during the pandemic, but in catching up with the disruptions to the service as a result of actions taken to reduce the spread of the virus. That means they are both behind on cases, and dealing with more cases than ever. As maintenance orders tend to take somewhere between half a year to a year to go through as it is, these time frames may end up increasing over the duration of the pandemic.

As such, the response by the courts has been to try and reduce the level of cases by only accepting applications they see as urgent. At the best of times, judges do not look kindly upon cases that they see as nothing more than a grudge; during the pandemic, they’re going to have even less time for such cases. It’s why you need to consider the possibility of avoiding the courts and finding a way to negotiate with your partner if you feel things are unnecessarily volatile.

This is because an application for judgement on financial orders when an agreement hasn’t been reached between parties currently costs £255 in England and Wales. While you may be exempt from making this payment under certain circumstances, there’s a good chance you could lose that money if your circumstances aren’t seen as strong enough.

What happens if legal advice gets ignored

Be advised that if you are making maintenance payments and you elect to simply stop paying, this will only come back to bite you in the future. You may decide to chance your luck because of the courts being snowed under and/or because you believe your ex-spouse doesn’t need the money. Aside from being irresponsible, the risk of taking such an action can come with a penalty.

You will be liable for enforcement, further court appearances/fees and you may be required to pay a further 8% interest on any money you owe to your ex-partner. If you are genuinely struggling to make these payments, it would be unwise to pile even more debt onto your name.

When your child is involved, the ramifications of missed payments can be far more consequential than just financial implications. Access to your child or children, as well as their future emotional well-being and relationship to you, could be irrevocably damaged. Simultaneously, these repercussions can also be felt when a parent takes the other parent to court over payments that the latter cannot afford. This is why mediation from a firm such as Foys is the best step you can take to solve the situation amicably with minimal emotional, mental and financial damage to all parties involved.

Divorce proceedings are in safe hands with Foys

Whether you’re in the early stages of deciding on a divorce, or you need a resolution with your ex-partner regarding spousal and/or child maintenance payments, Foys is here to provide you with all the support you need during this difficult time. Our experienced team knows that matters relating to divorce or an ex-spouse can be distressing in normal times – doubly so during a pandemic – and we simply want to provide the best outcome possible for all involved.

Foys’ specialist team are consummate professionals when it comes to tackling the intricacies of family law. Amongst our inter-disciplinary ranks are accredited resolution specialists, Law Society Children’s Panel representatives, and a collaborative family lawyer. We strongly believe that an empathy-driven approach, combined with a commanding knowledge of family law, ensures that everyone is safe in the hands of our experienced solicitors and administrative staff.

At Foys, we don’t want you to feel overwhelmed by the situation and that’s why we will walk you through the whole legal process on a step-by-step basis in a way that you can easily understand. This ensures that you have all the information at hand to make the right decisions for your situation. This process starts with a FREE initial consultation with one of our family law solicitors. Just call 01302 327136 or fill in our online enquiry form to start the process of putting that worry behind you.

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domestic abuse

Domestic abuse and coronavirus - a perfect storm?

Domestic abuse is a constant problem, but has the Coronavirus pandemic made matters worse?

Domestic violence reports during the first coronavirus lockdown increased significantly, with one charity, Refuge, reporting a 25% increase. With a new lockdown in place and the festive season fast approaching, we all need to be aware of the signs of domestic abuse and help those who may be suffering as a result of it.

When we think about domestic abuse, it’s normal for physical abuse to be uppermost in most people’s thoughts. However, in today’s increasingly technological and socially driven world, serious abuse can manifest in surprising ways.

How does domestic abuse affect a person?

Abuse has phases which cycle. First, there is tension building. During this stage, the victim may attempt to change their behaviour in the hope of stopping an abusive incident from occurring. The second stage is an abusive episode. This is then followed by a reconciliation stage. At this point, the abuser may apologise, ignore the event or put blame on the victim. A period of relative normality may follow and give the false impression that the abuse has come to an end until the tensions begin to build again.

Under usual circumstances, there are ‘breathing spaces’. These allow the individual a period of respite during which they can seek support. The abuser will be away from home for activities such as work and seeing friends. The victim will be able to leave the home for permitted activities like food shopping, collecting children from school and other domestic errands. Going to school also provides an opportunity for children to escape the situation at home and ask for help.

The suspension of activities outside the home, such as during lockdown, creates a situation with no breaks and tensions begin to rise. In a survey carried out by Women’s Aid 76.1% of respondents said that their abuser was spending more time at home as a result of lockdown. As a result, the victims are likely to feel increasingly on the edge as they try to ward off an episode by keeping their abuser happy.

This extra time at home under the eye of their abuser also makes it more difficult to seek help or make arrangements to leave without being discovered. Fear of spreading the virus reduces the possibilities of in-person support from friends and family. Meanwhile being at home with your abuser reduces the opportunities for seeking help via phone calls, text messages or online. Necessary lockdown restrictions have contributed to keeping victims in their homes and support at arm’s length.

What defines abuse?

Although domestic abuse is often violent, this definition fails to appreciate the whole picture. Women’s Aid defines domestic abuse as ‘an incident or pattern of incidents of controlling, coercive, threatening, degrading and violent behaviour’.

Abusers seek to dominate their victims both through physical and psychological methods with exacting standards of behaviour. They will also want to isolate their victim and prevent access to support which could end the abuse. So this will likely include restricting who they can spend time with and inspecting phones, computers and other devices for any activity they have not authorised.

Lockdown has limited access to family and friends for support and made remotely seeking support more challenging. Calling a helpline when your persecutor is just a few feet away is not an option. And every text message or brief phone call is an activity that may subject you to further abuse if discovered. Removing access to technology is both abusive behaviour and a way to further isolate the victim. This may take the form of deleting social media accounts, refusing to top up mobile credit or confiscating devices. Thus access to support of any kind is further reduced.

Other elements of lockdown may be used as part of the abuse. For example, blaming the victim for economic difficulties, refusing to purchase medications or food and insisting that if they leave the house they will be arrested.  Lockdown may also be used as an excuse to follow a constricting regime. At the other extreme restrictions may be disregarded altogether putting the victim at risk of infection and fear that they may trigger an episode if they attempt to take precautions.

Leaving an abusive relationship

Government guidelines made it clear that leaving your home to evade domestic abuse was permitted during lockdown. But for those seeking to leave, the reality was not so simple. The impact of the virus meant many organisations closed their doors temporarily or began working remotely limiting the kinds of support they could offer. 84.8% of services have reported having to reduce the support services they offer. Additionally, government guidelines have impacted on the number of places available at refuges.

Such reductions are unlikely to give victims the confidence they need in order to leave their situation. But it doesn’t mean that they should just continue to suffer. The Police have indicated that they would not look to leave a family homeless as a result of trying to escape domestic abuse. Louisa Rolfe, West Midlands Deputy Chief Constable and the domestic abuse lead for the National Police Chiefs’ Council has confirmed that they would seek to remove the perpetrator.

If you’re in immediate danger then calling 999 or texting 18001 101 remains the recommendation. Landline calls are traced and if the operator thinks you are in danger they will put the call through to the police. The issue of ‘pocket dialing’ has resulted in another option for mobile users. Once connected to the emergency operator there will the option, known as the Silent Solution or Make Yourself Heard, to dial 55 for connection to the police.

There is also an option for those who are deaf or cannot communicate verbally. It does require setting up in advance but is easy to do. Gain access to the emergency SMS service by texting REGISTER to 99 so that you can make use of it when you need to.

Online help for domestic abuse

Meanwhile, agencies such as Women’s Aid are looking at technological solutions. They recognise that making a phone call during lock is likely to be difficult. Hence their website features a quick cut-off button and will not appear in browser history.

Along with Refuge they also have safety tips for survival during Coronavirus. These include choosing a code word that you can use with a friend or family member if you urgently need support, talking to children about where they can take refuge and avoiding areas of the home which have items that could be used a weapon.

For those who are able to make a call, there is the National Domestic Abuse Helpline offering free, confidential support on 0808 2000 247.

A list of organisations offering specialist support to victims of domestic abuse is available at Gov.uk. This included services for people with disabilities, ethnic minorities, men and the LGBTQ community. It also flags organisations that can help with different kinds of abuse. For example, Refuge’s TechSafetyTool explains how to secure mobile devices and ensure that location services are not accessible.

What are the symptoms of abuse?

If you are concerned that someone you know is a victim of domestic abuse there are a number of signs that you can look at for. These include marks of physical abuse such as bruises, burns and bites.

There may also be indications that someone is being limited in what they are allowed to do. This can include being prevented from attending work or education, having their finances controlled resulting in a lack of money for food or bills, and their phone and computer use being monitored.

Additionally isolation from friends and family and being withdrawn are also signs to watch out for.

Refuge and Women’s Aid has useful tips on their website for how to proceed if you think abuse is taking place. Don’t expect them to open up immediately and avoid appearing judgemental. Do let them know they are not alone, say that it’s not their fault and offer to go to solicitor or talk to the police if they feel ready. However, they warn against putting yourself or the victim at risk by confronting the perpetrator.

What happens in a domestic abuse case?

Once the victim has had been able to escape from domestic abuse, the support they require will come from a number of different sources to cover areas such as housing, benefits and income, children and legal action. Foys understand the difficulty of the situation and offer confidential domestic abuse advice to help you explore your options in advance.

Domestic abuse is not a specific crime in itself but covers a number of different offenses. A police investigation will pass evidence to the CPS.

The next step then will be to obtain an injunction to prevent your abuser from having access to you. Foys can assist you with the requirements in applying for this including preparing a witness statement.

Where to live may be a concern. Seeking a refuge place may be an option and there is a likely legal requirement for local authorities to house anyone fleeing domestic abuse.

If you are married or in a civil partnership with your abuser then talking to a solicitor is important. Foys can advise and support you with protecting your property rights including anything that is owned jointly.

You may also need to protect your children in which case you will require a specialist. Foys puts the welfare of the child first and can help you to decide what type of court order would be best for your situation.

Other agencies and organisations such as Citizen’s advice, The Links GroupRefuge and Women’s Aid will be able to provide support and direction on accessing housing and benefits.

Leaving domestic abuse is not easy but neither is living with it. But the victims are not alone. Help is on offer to support those planning to escape and to assist them in finding the confidence to do so.

If you are a victim of domestic abuse and want to take legal action to help secure your safety, call and speak to one of our compassionate family legal advisers at a Foys office near you.

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probate inheritance and wills

The responsibilities of an executor

The responsibilities of an executor

If a deceased person leaves a Will, they will name someone as an executor – a person who will oversee and deliver portions of the estate to the relevant parties.

The executor is generally a person that the deceased person knew and someone who they felt could be trusted to ensure that their estate would be properly distributed. As most (but not all) have knowledge that they will be the deceased person’s executor, it is likely that they already have a general idea of the Will’s contents or even have a copy of it.

The executor will perform a lot of roles following the person’s death. Officially, an executor’s primary role is to deliver portions of the estate to the relevant parties (known as ‘beneficiaries’) after any debts or taxes that the deceased person owed have been paid off. Unofficially, however, they will do far more than this. This can include everything from being the person who registers the death to even arranging the person’s funeral.

As there is often a lot to manage as an executor, it is often helpful to secure the services of a probate solicitor. The term ‘probate’ is the legal term to describe the action of confirming and administrating the Will according to the deceased’s wishes.

As such, a probate specialist will be able to work with you to ensure that you fulfil all of your legal duties as the executor, help you understand the intricacies of probate law and complete the relevant legal documents. They will also ensure that you cannot be found to have performed your duties incorrectly and will minimise the threat of any legal action from the deceased person’s family members or creditors.

These are just some of the roles an executor is expected to fulfil as part of their duties:

  • Death registration,
  • Organising funeral arrangements,
  • Tracing the deceased’s property,
  • Valuation of the estate,
  • Settling taxes and debts,
  • Application for legal right to distribute the estate (probate),
  • Distributing notice of the deceased’s estate,
  • The sale of assets,
  • Allotting the estate in accordance with the Will,
  • Making a record of transactions

As there is a lot to manage, this is why it is best to consult with a solicitor who specialises in probate law – such as the Wills, Trusts and Probate team at Foys. As estates worth under £5,000 do not need you to apply for probate, we are going to focus on some of the above things that you need to do as an executor when dealing with an estate in England that has a value in excess of £5,000.

Death registration

As soon as a person dies, their death should be registered as soon as possible at the nearest registry office. In England, this is required within five days. To do this, the executor and/or next of kin must secure a certificate from the hospital doctor or, alternatively, permission to register the death (which is given by the coroner). From here, you should make an appointment at the closest registrar’s office to complete the registration process.

As well as this medical certificate, you will also need documents that prove the person’s identity and address (such as a birth certificate, certificate of marriage, a driving licence and/or a council tax bill). The registrar will tell you what exactly they need. Once this is done, they’ll provide you with two documents: one known as the ‘green form’, which is a Certificate for Burial or Cremation, and a BD8 form which is a Registration of Death. The former permits a burial or cremation to take place for the deceased person; the latter is a form you should fill in and return in the pre-paid envelope if the deceased was receiving state benefits or a State Pension.

In order to execute the estate, you will likely need extra death certificates to pass onto various utility companies (such as energy and water providers), banks, insurance companies, government bodies and other organisations that would need to know about the person having passed away.

The government’s service for doing this is known as the ‘Tell Us Once‘ service. This service will notify nearly all government organisations of the person’s death. As well as a death certificate, you’ll need to also provide the following to use this service:

  • The deceased’s date of birth,
  • Their National Insurance number,
  • Their driving licence number,
  • Their Vehicle registration number (if applicable),
  • Their passport number

As well as these details, you’ll also be required to give the following:

  • Any details regarding the deceased person’s benefits or entitlements (e.g. State Pension),
  • Any details regarding the provision of local council services that the deceased was in receipt of (e.g. Blue Badge for disabled people),
  • Details regarding a surviving spouse or civil partner (i.e. their name, address, telephone number and their National Insurance number or date of birth),
  • Should there be no surviving nor mentally capable spouse or civil partner to handle affairs, details regarding the deceased’s next of kin (i.e. their name and address),
  • The name, address and contact details of the executor,
  • Any details regarding any other pension schemes the deceased was involved with (e.g. public sector or armed forces’ pension schemes)

Organising funeral arrangements

As soon as you have the ‘green form’ – the Certificate for Burial or Cremation – you, the executor, will be able to make arrangements with a funeral director. Often a Will contains instructions regarding this process, such as: who should be consulted; how the ceremony should be conducted (if at all); and, if applicable, what should be done with the ashes after a cremation (e.g. scattered across a particular area or given to a specific person for safekeeping) or where the deceased should be buried.

The costs associated with a funeral or ceremony should come from the deceased’s estate; however, as money to cover the costs of a funeral or ceremony cannot be made available before the probate, the costs will have to be temporarily covered by the executor. There are services that can help cover the costs for you who will then recover the costs from the estate at a later date.

Tracing the deceased’s property

At this point, you should also be moving to track down any assets that were owned by the deceased at the time of their death. While the most valuable and important of these assets are generally stated on the Will, some may not be. These assets will include bank accounts, property and possessions. However, this should also include debts such as loans, bills and mortgages too.

There are tools to help you – such as the Land Registry. You can use this to find any additional properties that the deceased may own. Should you find any property, note that any house that is unoccupied following the death of the owner needs to be secured and the relevant insurance company must be notified of the occupant’s death.

Valuation of the estate

In order to determine the value of the estate, the executor must work with a number of different professional valuers and organisations to work out the true worth of the estate. This can become rather complicated. While houses and property are relatively easy to accurately value with the use of a Chartered Surveyor, it’s often contents that can prove problematic to value. Valuable paintings, porcelain collections and expensive jewellery can prove (if not trickier then) time-consuming. It is best to use professional valuers with specialisation in the field that the possession belongs to as this will ensure accurate valuations.

As for other items that are not valuable, you may want to see about using a company that does house clearances. This will ensure easy, safe and legal removal of household items while enabling the house to be viable for sale as soon as possible. We still have more to discuss but, as you can see, being an executor can be very difficult work – particularly as this may be a time of mourning. At Foys, our probate solicitors will help guide you through the process and can seriously lighten the load.

Settling taxes and debts

If an estate is valued above £325,000, there will likely be Inheritance Tax to pay. This is because anything above that threshold figure will be subject to tax. This tax will not be paid by the individual beneficiaries but by the estate. It is the executor’s responsibility to obtain the value of the estate, complete forms and pay the relevant tax due. Significant gifts made by the deceased in the seven years before their death should also be factored into Inheritance Tax too.

However, tax may not be due if everything above the £325,000 threshold was either left to the deceased’s spouse/civil partner or was given to a charity/community amateur sports club. This is because there is no Inheritance Tax due on any asset transfers between spouses/civil partners. The threshold can also be significantly increased if everything is given away to the deceased’s children or grandchildren. This is inclusive of stepchildren, adopted children and foster children. How much it increases by is dependent on the tax year.

Another consideration is if the deceased has left at least 10% of the estate’s net value to charitable causes, then the amount of Inheritance Tax charged on assets over the threshold will decrease from 40% to 36%. As the executor will be personally responsible for any mistakes made in the calculation and payment of Inheritance Tax, it is important to get in touch with one of our probate solicitors at Foys to ensure you are doing everything correctly.

Application for probate

The need for a solicitor who specialises in Wills and probate can be an important step – especially in cases where there is some level of complexity involving the estate. While the executor can apply for a grant of probate themselves, it is definitely worth considering using a solicitor to do this for you. At Foys, our Wills, Trusts and Probate team will be able to do this.

Distributing notice of the deceased’s estate

As it is not always clear that a deceased person has debts, the executor may want to consider placing a notice in both the local newspapers and public record publication The Gazette. This will afford any local or national creditors an opportunity to make a claim as they are not likely to be aware of the person’s death otherwise.

This is important because, as aforementioned, the executor is personally responsible for the distribution of the estate. If you did not make the necessary efforts to find any hidden creditors, then you (the executor) will be held personally responsible for the debt. This is another matter that our solicitors at Foys will be able to help you with to ensure compliance and eliminate this risk.

The sale of assets

As long as there aren’t any surviving joint owners of a house that the deceased owned, and there were no instructions in the Will to indicate what should be done with the property, the executor will be responsible for what should be done with the property. Often the executor will decide to sell the estate in order to pay off any debts (like the mortgage) and deliver the remaining funds according to what is specified by the Will.

It can be very important to have a probate solicitor on your side when selling property as, again, the executor is personally responsible for the estate. It may be beneficial to sell the house off quickly in order to get access to more immediate funds. However, if the property is sold off quickly and for less than the market value, then the executor may face legal action from beneficiaries of the Will. Conversely, the beneficiaries may want to wait for higher offers to come in which can extend the amount of time, effort and energy required to sell the house. At Foys, we can help you with this process to ensure any decision is taken on sound legal advice that offers you the best protection against any legal action.

Allotting the estate in accordance with the Will

After all of the above has been completed, it’s time to distribute what is left to the beneficiaries in accordance with the Will. This is not a quick process and you should only do this after at least half a year has passed to ensure that there are not any late creditors or others who may challenge the Will or the way it has been executed – as set out by the Inheritance (Provision for Family and Dependents) Act 1975.

A complicated part of this process is the question of pensions and life insurance claims. You need to check and see with any pension or insurance providers to see if there are certain rules around how the money that was paid into these schemes should be distributed. This money may be due to a particular person or it may be able to be rolled into the estate.

One thing to watch out for is whether or not one or more of the beneficiaries have been declared bankruptcy. If you make a payment directly to a beneficiary who is bankrupt (either wittingly or unwittingly), then you (the executor) may be hit with a debt. This is because any inheritance to a bankrupt beneficiary must be shared to their Trustee in Bankruptcy (or Official Receiver) and not directly to the beneficiary. This enables the Trustee to use the money to pay off any debts accrued by the bankrupt beneficiary.

While any bankrupt beneficiaries are required by the Insolvency Act of 1986 to disclose to their Trustee in Bankruptcy that they are to be in receipt of inheritance, they may not always do this. As such, the executor must perform their own due diligence and find out whether or not beneficiaries are bankrupt before making any payments.

If this is not done, the bankrupt beneficiary may face prosecution in the Magistrates Court, and the executor can be held personally liable to pay the amount to the Trustee in Bankruptcy. As checking to see if beneficiaries are bankrupt can be a time-consuming process, particularly if the estate has a lot of beneficiaries, then it’s another reason why our probate solicitors can seriously reduce the load. They will be able to make searches to ensure that you know whether or not beneficiaries are bankrupt or not.

Making a record of transactions

Finally, an executor is responsible for keeping a note of every transaction that has been carried out in their role as executor of the estate. This is not only a legal requirement, as set out within the Administration of Estates Act 1925, but a very important step in covering you against any legal action. What you should detail as part of the estate’s accounts include the following:

  • The estate’s assets and value at the time of the person’s death,
  • The estate’s liabilities and value at the time of the person’s death,
  • Any money to HMRC as part of Inheritance tax (the Inheritance Tax account),
  • Any value that assets gained or lost (the capital account),
  • Any money gained after the person’s death to when the assets are transferred or otherwise realised (the income account),
  • Any fees paid to the court, conveyancing services, surveyors, legal advisors, estate agents, bankruptcy search services and other relevant expenses (the administration expenses account),
  • The total money paid to each beneficiary (the distribution account)

What else can a probate solicitor help with?

We have described a route that is followed by many executors; however, there are also many instances where this path can be deviated from due to other circumstances. Take, for example, if there is disagreement over who should be the executor or if two executors were appointed and cannot reach agreement on decisions taken on behalf of the estate. Additionally, if the deceased person did not leave a Will, this can cause serious complications for any potential executor.

A probate solicitor can be essential in these scenarios and in others, including:

  • If the estate is bankrupt, thought to be bankrupt or there are questions surrounding the estate’s bankruptcy,
  • There are complex and unconventional circumstances (e.g. when the deceased person’s assets are within possession of a trust),
  • The estate continues to earn a regular income that pushes it over the Inheritance Tax threshold,
  • If the deceased lived outside the UK and/or had foreign assets or properties,
  • If a potential beneficiary was intentionally left out of the Will but tries to make a claim as if they were a beneficiary (e.g. an estranged child, an ex-partner, etc.)

There are many more instances that can complicate matters for an executor. As well as the previously mentioned benefits, these are further reasons why an experienced probate solicitor can be so important as it is likely that they have seen most, if not all, scenarios play out before and, consequently, know the correct response.

Contact the wills and probate specialists at Foys

Being an executor may seem like a thankless task but there is likely a good reason as to why you were chosen for the role and the likelihood that the deceased person put their trust in you to distribute their estate. This sense of responsibility to this friend, loved one or valued acquaintance often motivates executors to do their best. But, in order to ensure that happens, it is advisable to have legal counsel in place.

An executor can face many challenges so having a probate solicitor help can be hugely beneficial to not only their ability to carry out their responsibilities, but also ensures that there is an expert offering practical and sound legal advice who is never more than a phone call away – should a sudden problem arise.

Our qualified and dedicated Wills, Trusts and Probate team at Foys are considered amongst the best in England in dealing with all matters relating to executing Wills and managing probate. For over 40 years, we’ve helped executors settle estates all across the north of England and Midlands. Our service helps executors understand the process, what it entails, the responsibilities of an executor – all in a way that is digestible and easy to follow. For many, this advice and guidance from Foys is invaluable in settling the estate with minimal stress.

We’re happy to offer you a FREE initial consultation so that we can understand your case and explain to you how we can help – all without any financial commitment. To talk to a member of our Wills, Trust and Probate team, and get your free initial consultation, simply call 01302 327 136 or get in touch using our Online Form today. 

Posts Relating To The responsibilities of an executor

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domestic abuse solicitors support

Domestic violence and coronavirus: How Foys Solicitors can help you

Domestic violence and coronavirus: How Foys Solicitors can help you

Foys Solicitors’ domestic abuse and injunction solicitors can help those in need.

As a result of the COVID-19 pandemic, we are all adjusting to a new way of life. More of us are spending longer periods of time at home with family because of the Government guidance regarding social isolation. While many may relish the time at home with family, it’s important that we spare a thought for those who are experiencing domestic abuse. These stay-at-home guidelines are likely to reduce or even shut down routes to support and safety for victims who simply cannot find a means to separate from their perpetrator.

What is domestic abuse?

According to Women’s Aid, domestic abuse is an incident or pattern of incidents of controlling, coercive, threatening, degrading and violent behaviour, including sexual violence. In the majority of domestic abuse cases, partners or ex-partners are the perpetrators. However, other family members or even carers can also be abusers.

Isolation is a tactic used by domestic abuse perpetrators to control their victim. By keeping the victim isolated, there are fewer opportunities for them to actively seek help. There is also a decreased chance of any physical injuries being noticed. However, it is important to remember that domestic abuse is not just physical abuse, and a physical mark is not always left. Coercive and controlling behaviour, which is on the rise, is another common form of domestic abuse.

Government support for domestic abuse victims and charities

Following the first week of lockdown, domestic abuse charity Refuge said there had been a 25% increase in calls to the National Abuse Helpline and online requests. The Government has clarified that victims of abuse will be allowed to leave their homes to seek help despite the restrictions and said it would provide £2m in extra funding to support charities dedicated to helping victims of domestic abuse. Additionally, Home Secretary Priti Patel has also launched an initiative called “You Are Not Alone” to help those experiencing domestic abuse.

Although charities are seeing an increase in cases now, they’re also bracing themselves for a flood of those in need of help and support when the lockdown is over and people can move around more freely.

Legal solutions for victims of domestic abuse

The legal remedies which are available for victims of domestic abuse include applying for a non-molestation order (commonly known as an injunction) or an occupation order. Such an application can be made urgently where circumstances require it. A statement setting out the nature of the difficulties and the remedy sought is required to support an application.

An application for a non-molestation order and/or occupation order can be applied for when there has been physical violence, when threats of such behaviour have been made, or there has been intimidation and/or harassment.

A non-molestation order aims to control a person’s abusive behaviour by requiring them to refrain from undertaking a particular act, whereas an occupation order would seek to regulate the living arrangements of a family home.

Breach of a non-molestation order is a criminal offence. Breach of an occupation order could result in the police being required to arrest the perpetrator if a Power of Arrest is attached to the order.

Not being able to come face to face with a lawyer may make a victim question whether it is worth seeking legal advice about the remedies available to protect them. While Courts are closed to the public, in many cases judges, lawyers and court staff are still working to ensure access to justice is available. The Courts have embraced technology available to conduct hearings remotely by telephone or video call and where necessary at short notice.

Foys Solicitors is here to help domestic abuse victims

Foys Solicitors is keen to ensure that victims of domestic abuse do not suffer in silence and understand that help is always available, especially during this lockdown period.

At Foys Solicitors, we continue to operate a full service to all clients, albeit from a remote working environment. Modern technology allows us to help with matters in ways we would have considered unconventional before the nation’s lockdown. We can offer initial and subsequent meeting via video calling services such as Skype and FaceTime. Anyone seeking advice, on a confidential basis, should not hesitate to contact your local Foys Solicitors office or via our contact page.

Our team of Domestic Abuse and Injunction solicitors will always be here to help you through your situation.

Our offices are:

Please note: Domestic abuse remains one of the areas in which Legal Aid is still available.

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Family Mediation

Family Mediation Solicitors

Family Mediation Solicitors

Our team of experienced and supportive family mediators is here to help you resolve sensitive issues between family members, without the need for going to court.

As a person looking for a cost-effective tool to help resolve matters regarding divorce, childcare and finances, the involvement of a mediator could be the answer.

The family mediation team here at Foys Solicitors are committed to helping you find favourable solutions for all parties involved. Our passion for helping family members communicate and resolve disputes has led us to update our compassionate family mediation solicitors page with accurate and reliable information.

On this page, you’ll find out how we can help you with issues to do with:

  • Divorce
  • Separation
  • Childcare
  • Money and finances
  • Property

Contact Foys Solicitors team of family mediators today

If you would like a free initial consultation on our services, call us on 01302 327136, email us at enquiries@foys.co.uk or complete our Contact Form.

For more information on how mediation can help your family, take a look at How mediation can help your family during a divorce.

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Family law concept image

Family law solicitors

Family law solicitors

At Foys, our family law solicitors understand the importance of legal family matters and are committed to ensuring the best solutions for you and your family.

Family law can be complex as it covers a wide range of legal issues that address different matters. Therefore, it is important to understand the details involved in order to ensure the outcome you desire. We understand the stress and confusion such issues may cause, therefore, our experienced family team take a sensitive approach to help you understand the legalities.

We will support you through the difficult times and on your journey to securing a better future for you and your loved ones.

Our family team can advise and assist you with the following:

  • Divorce
  • Collaborative law
  • Civil partnerships
  • Separation agreements
  • Premarital agreements
  • Cohabitation agreements
  • Financial matters
  • Domestic abuse and injunctions
  • Children’s legal matters
  • Change of name

For more information regarding how we can help you, check out our recently updated ‘Family Law Solicitors‘ page. Here, we dive deeper into the areas of family law that we cover.

Contact Foys Solicitors for sound advice on family law today

To book an initial free consultation or to find out more about our family law services, call Foys’ family law solicitors on 01302 327136 to book your FREE initial consultation. Alternatively, you can send us a message via our Contact Form.

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Access to Justice – How much do parents really have?

Access to Justice – How much do parents really have?

The legal system has become noticeably more impenetrable in recent years.

Research by Resolution shows that where before 25-45 people on average were turned away, in 2018 this has increased to 100-200. So what’s changed, and more importantly can anything be done about it?

LASPO

Following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), most private family law cases – including matters regarding the arrangements for spending time with children – do not qualify for the services of a Legal Aid lawyer. Many parents are finding themselves under the microscope of the Family Courts alone, arguing disputes regarding their children without legal aid.

Cases where arrangements for children and/or financial issues arise from separation are increasingly unrepresented. Many family lawyers have found themselves unable to assist people in such circumstances due to the changes to the Legal Aid system in 2014. Legal aid is available to those arguing against the State, but not to disputes between parents, leaving them to fight their own battles on their own budget. As a result, a lack of funds means representation is not an option for many.

This has had a significant impact on the scale of these types of cases, often elongating them and making them much harder to resolve. As Shadow Justice Secretary Richard Burgon has said, “Separation and decisions over child access are some of the most difficult moments people will ever go through. When people are priced out of getting legal help, this can make it even harder for all involved, especially the children, and can escalate into divisive family court battles with long-term consequences”.

Is mediation the answer?

The government’s Legal Aid goal was to encourage a greater focus on mediation as a way of resolving conflicts, but it does not seem to have succeeded. While mediation is compulsory in the majority of cases, many attend court afterwards without understanding the benefits or resolutions that mediation can bring. Jayne Kirtley, our Legal Executive Advocate at Foys Solicitors, puts it best: “Early help can sometimes avoid the need for court proceedings and the emotional conflict that this can bring. Being able to agree on matters amicably works far better than forcing it.

Despite the benefits, mediation is still an option that is largely overlooked. Instead of parties resolving their differences beforehand, Judges now find themselves commonly faced with two unrepresented parties; one party or both being represented is now the exception rather than the norm. Government figures currently suggest that 46% of private family law cases had a lawyer on each side in April to June 2012, but in the same period in 2018, only 19% did. The option is there, but many simply don’t know how to take advantage of it. This is where Foys Solicitors can come in.

We can help

At Foys, our experienced Children and Separation solicitors are equipped to offer practical advice in these situations. We’re experts at helping you through the process of mediation, and a consultation with us includes the first 30 minutes free. If you need help or know someone that may benefit from our assistance, fill out our Online Form or get in touch with your local office:

  • Doncaster – 01302 327 136
  • Retford – 01777 703 100
  • Worksop – 01909 500 511
  • Clowne – 01246 810 050
  • Rotherham – 01709 375 561
  • Sheffield (Waterthorpe) – 0114 251 1702
  • Sheffield (Chapeltown) – 0114 246 7609

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Happy Couple

Civil Partnership for all

Civil Partnership for all

It’s been a very long fight for Rebecca Steinfeld and Charles Keidan. In 2014 they applied for a Civil Partnership but were refused, on the grounds of The Civil Partnership Act 2004 stating that “Two people are not eligible to register as civil partners of each other if … they are not of the same sex.”

Now, after a four-year legal battle that has involved four different equalities ministers across 3 courts, including the Supreme Court, the judges have finally made their decision. The Civil Partnership Act 2004 was ruled as incompatible with the European Convention of Human Rights: everyone is entitled to apply for civil partnership, regardless of the gender dynamics of the couple.

Civil partnership is an increasingly common choice, with many having experienced a previously bad marriage or simply wishing to avoid the cultural and religious baggage that comes with tying the knot. However the lack of legal recognition had left it in a legally murky area, with none of the rights or financial protection afforded by marriage. Thanks to this ruling, civil partnership will finally be a fair alternative to marriage for everyone, as opposed to an option only afforded to a select group.

If you’re currently in a civil partnership, chances are that you are unsure of your legal future following this ruling. At Foys we’re experts in family law, and we can assist you with making an application to get the legal recognition you deserve.

To find out how we can help, use our Online Form to get in touch, or contact your local Foys Solicitors office:

  • Doncaster – 01302 327 136
  • Retford – 01777 703 100
  • Worksop – 01909 500 511
  • Clowne – 01246 810 050
  • Rotherham – 01709 375 561
  • Sheffield (Waterthorpe) – 0114 251 1702
  • Sheffield (Chapeltown) – 0114 246 7609

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Family legal aid

Legal Aid services for family matters with Foys Solicitors

Legal Aid services for family matters with Foys Solicitors

Great news for Foys Solicitors

Foys Solicitors have successfully tendered for new Legal Aid contracts for six offices and are now able to offer Legal Aid for family matters at Chapeltown, Waterthorpe, Rotherham, Doncaster, Retford and Worksop. Legal Aid is not available in every case and is subject to meeting certain criteria and means testing. Our advisors will be happy to let you know about your eligibility at an early stage.

For more information, contact us by using our online form. Alternatively, you can contact your local Foys Solicitors office:

  • Doncaster – 01302 327 136
  • Retford – 01777 703 100
  • Worksop – 01909 500 511
  • Clowne – 01246 810 050
  • Rotherham – 01709 375 561
  • Sheffield (Waterthorpe) – 0114 251 1702
  • Sheffield (Chapeltown) – 0114 246 7609

Enquire About Our Services Today

Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below