Ask a top lawyer?
Time poor? We asked a top legal firm to answer your queries about family law, self-employment, wills and all that stuff you never get round to.
Lawyers don’t come cheap as we all know but we’ve used Muddy’s persuasive powers to get the staff at top South of England law firm Coffin Mew to answer your most pressing legal questions pro bono. Handy, right? And if you like the cut of their jib, you can pop into their Newbury office to say hello and pretend you’re Meghan Markle in Suits (er, possibly). So thank you to everyone who posted a query – let’s do this, legal eagles.
We’re not married – how does that affect the financial arrangements for children if we were to separate?
Recent research revealed that over two thirds of couples who live together believe that they have rights against the other but, put simply, without a marriage ceremony of sorts, there’s no legal status of a ‘common law’ spouse.
Couples who live together don’t have a legal duty to support each other financially and neither has the right to claim against income, capital or pensions, on separation for personal support. Support does extend to children, but this is limited to help with a child’s everyday living costs such as food and clothes. This comes under the Child Maintenance Service and any support is calculated using a set percentage of the paying party’s income. There is further provision under Schedule 1 of the Children Act 1989 where the court has power to order lump sum payments to cover capital expenditure, which can include a lump sum to buy a car to transport the children around, update children’s computers or repay debts incurred to support the children. The court is also able to transfer property to the parent with care until the child is an adult. These claims can only relate to the needs of the children and not the needs of the parent. Generally, financial support will last only until a child is 18.
There is an enormous difference between claims that can be made by a parent in the context of divorce, where the courts are much more generous, so disputes over assets when you are not married are much more complex and eventual awards much less generous.
Julie-Ann Harris, partner and head of family
I want to leave my money to my daughter, but if she dies I want the money to go to her children and not her husband as I’m worried he could remarry and then who knows! Is this possible?
This is actually the most common way of dealing with your estate: leaving it to your children in the first instance and, in the event that they die before you, your estate passes to their own children. There is no restriction on you leaving something in your Will to a child’s spouse, however this is much less common. The idea is that your estate is kept in your bloodline. One concern is that the grandchildren may be minors at the time. In this case a trust could come into effect for the grandchildren until they reach 18. You can also extend this trust in your Will to the age of 21 or 25.
It may be that you chose to appoint your deceased child’s spouse as a Trustee of the grandchildren’s trust. The Trustee will be responsible for managing the fund for the benefit of the children but cannot access the fund for his or her own benefit. More flexible trusts can be used if needed, depending on the circumstances.
We would also recommend that you review your will every few years or after a major life event such as the death of a relative. This will allow you to discuss your needs or wishes with a professional and ensure that they’re properly reflected by your will.
Liam Colville, solicitor
My father is getting very forgetful – should I be getting him to sign me up as his power of attorney now? Is that even legal?
If your father still has the mental capacity to do so, he should think about making a Lasting Power of Attorney (LPA). There are two types of LPA, one for health and welfare and another for property and financial affairs. However, this will need to be completed under his instruction and he will be free to choose whom he would like to act as his Attorney. If your father is no longer able to make a Lasting Power of Attorney, you may wish to apply to the Court of Protection to be his Deputy. This is a more complex process but will still ensure that you’re able to make decisions on behalf of your father when he is no longer able to do so.
Annabelle Vaughan, partner and head of court of protection and wills, trusts and probate
My will is from 2002 – is it still legally binding? It’s very out of date in terms of where I’d send my kids to live but I’ve been relying on common sense.
Unless you have made a new Will, married, or actively revoked your Will since you made your Will, it will remain a valid Will regardless of how long ago it was made. A guardianship clause will apply until the child reaches 18 years. Guardianship clauses are often shown to be out of date when reviewing Wills because the children have grown up since the Will was made. Guardianship, however, is not legally binding and, as the child approaches the age of 18, they will have more say in the arrangements that are made for them. It is important to remember that a Guardianship clause only comes in to effect if both parents have died while the child is still under the age of 18. Nevertheless, I would recommend reviewing your Will annually to ensure that it is up to date.
Liam Colville, solicitor
Still totally confused by Inheritance Tax – what are the latest allowances and how does that work with one living parent giving to two siblings?
Changes to the Inheritance Tax (IHT) regime were introduced in April 2017. These changes introduced an additional IHT allowance called the Residence Nil Rate Band (RNRB). The RNRB is in addition to the existing Nil Rate Band (NRB). The NRB is available to all individuals – it is currently £325,000 and is frozen at this rate until 2020/21. The RNRB is only available if your estate contains a main residence and is passing to direct descendants. If the RNRB is available, an individual currently receives a further £125,000 Inheritance Tax allowance which can be applied against the value of their home. (this will increase by £25,000 each tax year up to a total of £175,000).
In the case of married couples who leave their estates to each other, because this transfer is exempt from IHT, the survivor’s estate is entitled to use the allowances of the first spouse to die. If both NRB and RNRB are available in the survivor’s estate, this currently provides an IHT allowance for married couples of £900,000 on the death of the survivor. Therefore, if the surviving parent leaves their estate to his or her two children and this estate includes a residence worth more than £250,000, the value of estate would have to exceed £900,000 before IHT liability arose. This is subject to some other factors such as lifetime gifting and an upper threshold on the RNRB. This is also based on the current rules, it is worth noting that these are subject to change.
Liam Colville, solicitor
Should I be protecting myself as a self-employed person? I don’t have any legal provision at all.
I would always recommend that any individual providing their services on a self-employed basis does at least two things. First, to take some advice, both in terms of tax and employment law, on how HMRC and an employment tribunal would view the status of the relationship between you and your client(s). Second, to then put in place a written agreement which reflects how that relationship operates in practice commercially.
The first point is crucial because both HMRC and an employment tribunal judge can and will look beyond the label that the parties apply to themselves and can reach a different conclusion. As any follower of the litigation involving Uber and Deliveroo drivers will know, the impact of being found to have employment or worker status rather than self-employed status can be far reaching and with unintended consequences.
The second issue is more to do with common sense but has important legal connotations. A written agreement gives both parties a reference point over any key commercial terms. For example, levels of pay and the time frame in which invoices must be settled, along with liability for expenses and what notice must be given by either party. One of the biggest areas of dispute we see in practice tend to revolve around ‘scope of work’ and areas of responsibility. A well-drafted agreement can minimise these risks. Trying to piece together what was ‘agreed’ via a chain of emails or during conversations is never an ideal place to be when a dispute arises.
Leon Deakin, partner and employment solicitor
I want to employ someone in my small business – can I get contract off-the-peg that will work?
While it is certainly true that you can find ‘template’ employment contracts, either for a small fixed amount or even free from some sources, I would always recommend that a bespoke agreement prepared with your specific business and, ideally, the particular employee in mind is well worth the investment. You may think I am bound to say that as a lawyer but you get what you pay for. As staff costs are often one of the biggest outlays for any business and the risks and compensation arising if something goes wrong can be so dire (especially for a smaller business) I would ask: are you prepared to gamble? Individuals are not only increasingly aware of their rights but also readier than ever to enforce them.
A perfect example of the value an expert advisor can add is in the area of post termination restrictive covenants. A key employee leaving, with the ability to compete straight away, can be devastating. Poorly drafted covenants will be unenforceable. Unless you take some informed advice on how to draft these and what is likely to be considered reasonable in the specific circumstances, you will be left either having to navigate a complex area of case law alone or taking a substantial gamble.
Importantly, we are also increasingly seeing business and staff wanting to work in less traditional and/or more agile ways. Off-the-peg contracts tend not to deal with these situations as well – or at all. It is worth spending a relatively modest sum on getting it right for your business. A good advisor will quickly be able to narrow down what can be standard and what needs to be more robust so the costs may not be as much as you expect.
Leon Deakin, Partner and Employment Solicitor