Drawing up a Will 

Below we set out a few simple guidelines to follow in preparing a simple Will which we hope you find useful. Our lawyers are always on hand to advise and draw up your requirements in a speedy and seamless operation. To make the process quicker and simpler, the following is the sort of information our lawyer will require in drawing up your Will.

If you are ill or housebound we will come and take your instructions at your home.

To prepare a will the folloiwing is required

Your full name and address Full names and addresses of your children The name of 2 (known as the executors) people prepared to deal with your Estate after your death The names and addresses of any persons you wish to make specific gifts of money to Details of the value of your house, pension, investments and savings Your wishes for burial or cremation if you have a preference Any special wishes you wish carried out including disposal of ashes or funeral arrangements Any items of sentimental value you wish to give to a particular person Remember, they are YOUR wishes, you can do basically whatever you want with your Estate. Don't let out of date rules dictate what you do with it!

If your Estate exceeds a certain amount there may need to be some tax planning to keep Inheritance Tax to a minimum. Please ask your lawyer for details.

 Wills & Probate

The manner in which we deal with the deceased's property and finance (generally known as their 'Estate') depends upon whether or not there was a Will made out by the deceased. More and more people nowadays realise that the best way for their wishes to be put into effect are for them to make a Will during their lifetime.

If the deceased left a Will, an application will be made by those named as Executor for a Grant of Probate. This involves a application to the Probate Registry supported by a sworn statement known as an Oath. A fee is also paid to the Registry. Once the Probate has been obtained it is then possible to collect in and administer the Estate.

Because there is a Will, the Estate is distributed to the persons mentioned in the Will. The Executors or the Lawyer acting on their behalf will pay off any debts and expenses such as outstanding bills and funeral expenses. If there is any liability for Inheritance Tax this too will be paid out to the Inland Revenue before the balance of the Estate is paid out. This balance is known as the Residuary Estate and those to whom it is paid are known as Beneficiaries. A charge for the legal work is made which depends upon the time spent and the value of the Estate.

If there was no Will then the deceased is said to have died Intestate. The Estate belonging to the deceased still needs to be collected in and distributed, and so regrettably the bills have to be paid! The main difference here is that we do not know where the deceased wanted their money and property to go, so complex rules have been drawn up over the years to decide where the Estate should go.

Inevitably, this may be unsatisfactory as there is very little discretion to change those rules. For example you may know that Uncle George always said he wanted his fob watch to go to the next door neighbour for the kindness they had shown him - however under the rules of intestacy, the neighbour is not entitled to anything.

In our 21st Century world, relationships have changed. Although marriage is the norm, often couples co-habit and those relationships may be longstanding and may have produced children. However, the surviving partner of such a relationship wouldn't normally be entitled to anything from the Estate (though the children would). Likewise same sex partnerships afford no legal rights for the surviving partner who can be left without money and home.

The procedure for collecting in the Estate is pretty similar to Probate but involves a Grant of Letters of Administration to be taken out.

A further disadvantage is that under the Rules, even a wife or husband surviving their partner does not necessarily mean that they automatically obtain the full amount of the Estate. Inevitably, property values, insurances, pensions and savings can add up to a substantial sum. It is not unknown for a surviving spouse, because the value of the former matrimonial home is quite high, to not gain the house outright but to have a shared interest in it with their children. As well as creating complicated trusts it can cause difficulties within the relationships of those left behind. The cost to the Estate can be large.

This additional cost and heartache could all have been avoided by leaving a Will! At quite a modest cost and a surprisingly short time all these problems can be avoided. Your Estate will pass to those that you want it to.

Child Matters 

The very fact that you have sought legal advice means that there may be a potential problem relating to your child or children. It may be as simple as wanting to change your child's name or as important as the Local Authority having concerns for your children's welfare. Whatever the problem, it is likely that it is regulated by The Children Act 1989.

Most people who seek legal advice in connection with children, do so to clarify where they stand on issues such as Residence and Contact (Custody and Access). However on this page you will also find information about other issues such as Change of Name deeds, parental responsibility and care and supervision proceedings.

Residence and Contact

In normal circumstances, when a relationship breaks up, there is no dispute over where the children will live or when they will see the other party.

In circumstances such as this there is no need for any Court intervention and the informal agreement reached works for the benefit of all concerned, most especially for the children. The Children Act 1989 specifically states that unless it is necessary, there should be no order.

However, on those occasions that the parties cannot agree then there are 2 basic approaches to be examined.

Negotiation through legal representatives or the family mediation service to try and resolve the issues.

Court action 

The first option is an attempt to resolve any issues without the trauma and upset of court appearances. Indeed since 8th November 1999 before a party can obtain a Legal Aid Certificate in County Court proceedings, they and their former partner must attend an intake appointment locally with Cumbria Family Mediation Service.

This appointment does not mean that you must resolve your problems through mediation but, that there has to be a chance to see whether it would work for your situation. The cost of this initial appointment is free for both parties where one of them qualifies for Legal Aid.

Experience always shows that agreed arrangements tend to succeed better than Orders from a court that have been imposed on one or both of the parties.

Within this Practice we very much take the view that the welfare of your offspring will be best served by agreements rather than litigation.

Unfortunately, there are occasions where agreement can't be reached and it is necessary to issue proceedings. For unmarried couples this is usually in the Family Proceedings Court where specially trained Magistrates deal with the case and for married couples in the County Court where the matter is dealt with by a District Judge.

Generally speaking, whichever Court that proceedings are started in, the practicalities are the same.

You will be asked to complete a special form giving details of the parties and the children and what you are asking the court to do. The Court fixes a date for a Directions Hearing (usually 2-5 weeks later). At that hearing there will be a Court Welfare Officer who will meet the parties and try to resolve the issues. If successful, no further hearings are necessary. If unsuccessful, the Court directs that the Court Welfare Officer visits the parties and prepares a report. The parties generally will be asked to supply written statements to the Court in support of their position. Usually this takes 12 weeks. At the adjourned hearing the parties will be expected to reach agreement broadly in line with the Court Welfare Officer's recommendations. If that proves impossible, then a further date up to 3 months later is fixed for a full hearing when evidence will be heard on oath and a final decision taken. To reach this situation is quite rare and only a very small percentage of cases end up as contested matters.

Parental Responsibility Agreements or Orders

These are particularly relevant to unmarried couples. As the law stands at present, the unmarried father does not automatically acquire parental rights. Generally this involves a degree of consultation between the parties upon major decisions affecting your child or children.

There are circumstances whereby it may be necessary to have those rights - if the parties agree between them that it is appropriate, then the parties complete a simple document which is signed generally before a Magistrate which makes it legally binding. Often during other proceedings where there has not been any agreement, the Court may deem it appropriate to make an order granting those rights.

Change of Name Deed

For many reasons a child may not have the same surname as one or both of its' parents. It is possible to enter into a deed to rectify that. However, if there is a Residence or Contact Order in force it can only be done with the agreement of both parties or by order of the Court.

Care and Supervision Proceedings

These are proceedings usually taken by a Local Authority to protect children who they believe are not being cared for appropriately. If you are served with any paperwork of this type it is extremely important you contact a solicitor. You will be entitled to Legal Aid as of right, regardless of your means.

Divorce

Every divorce is different from the next and as such we treat each case individually. However we include general information which you may find helpful.

The family solicitors will calculate and advise you as to whether you are entitle to Legal Aid. If you are not, a structured payment plan will be worked out with you. As a private client the costs of settling family matters can accrue very quickly. We usually ask for a lump sum payment at the start of you case followed by a monthly standing order payment. This saves you being presented with the full bill at the end of your case.

Overview of Divorce Proceedings

The Statement of Arrangements contains details of where the children are living, what arrangements have been made for contact (access) and residence (custody) and important details about their health, welfare and education and any payment for their upkeep.

These documents are sent to the court along with the marriage certificate and if appropriate, the issue fee. The Petitioner (person initiating the divorce) will be notified of the date the Court posted those documents to the Respondent (the other party in the marriage) who has 14 days in which to acknowledge that they have received them and whether or not they agree with what is said.

The Court then sends an Acknowledgement Form to the Petitioner's Solicitor who prepares a statement for their client in which it is confirmed that everything in the Petition is, subject to any alterations, true. That document known as an Affidavit is sent to the Court who fix a date for the Decree Nisi to be pronounced. This usually takes about 3 weeks.

As long as there are no further problems, then you will be entitled 6 weeks after the Decree Nisi to apply for your decree to be made into a Decree Absolute. This is the final part of the legal procedure in ending the marriage itself. It is only when the Decree Absolute has been pronounced that you are finally divorced and are free to remarry in the future.

Finances

The assets of any marriage including

• the matrimonial home if it owned
• occupational pensions
• motor vehicles
• timeshares
• second homes
• cash savings
• PEP's
• ISA's

can be used to calculate the sum that each party to the marriage is entitled to.

Generally speaking it is possible after negotiation between lawyers to reach a settlement which is acceptable to both parties and the settlement is placed before the Court for its approval and encompassed in a Consent Order.

Occasionally, it is not possible to agree and the matter has to be heard before a District Judge in the County Court.

In both scenarios, the parties have had to disclose everything about their financial affairs. This process is known as disclosure.

As a general guide, a consent order, which can only be made after a decree nisi, can take between 3 and 12 months to finalise. A contested order between 9 and 18 months.

An important consideration may also be the entitlement to Welfare Benefits. We can provide you with advice upon your entitlement and how any financial settlement may affect any existing or future claims for benefit.

The Children

Where the parties have been married, both of them automatically acquire Parental Responsibility. This means that both parents are entitled to be consulted on major decisions affecting the child or children.

However, the problem of with whom the children are to live and arrangements for contact with the other party can be a very delicate area.

More often that not the parties can agree this between them but, occasionally there are problems and it becomes necessary for some more formal intervention. This does not automatically involve the Courts - it can sometimes be resolved through Mediation. There can be a fee to pay which varies depending upon your income but, it can provide a non-confrontational atmosphere in which to resolve problems. If it is not possible to resolve the problems either through mediation or negotiation, then the Court can make various orders including a residence order and a contact order.