Articles

  • April 2016
    Common Misconceptions


    I thought I would write an article about some common legal misconceptions which we lawyers regularly come across.

    “Common Law spouse”. There is no such thing as a common law husband or wife. It has never existed. You are either married; in which case you have rights under the Matrimonial Causes Act, intestacy rules, Inheritance (Provisions for Family & Dependents) Act and many other Acts of Parliament.; or you are not. If you are not married then you will have less legal rights and there are also tax consequences.

    “You can’t be an executor and a beneficiary”. This is not true, you can. However, there may be circumstances where it would be unwise to appoint someone to be an executor because they may have a conflict of interest between themselves and other beneficiaries, in which case they may use their power as executor to benefit themselves over other beneficiaries.

    “I have a Will so I don’t need a Power of attorney” or “I have power of attorney so I don’t need a will”. Both of these are wrong. A power of attorney appoints attorneys who manage your affairs during your lifetime. Once you die, the Power of Attorney is null and void. At this point your executors take over the administration of your estate. Your executors have no power over you whilst you are alive, only when you are dead.

    “You can’t be an executor if you have power of attorney”. Wrong again I’m afraid. The attorneyship finishes on death, the executorship begins on that event and the different powers can be exercised by the same person.

    “I have a Will so I don’t need Probate”. This is also wrong. Probate is the process of proving the Will as the last Will and Testament and administering the estate in accordance with that will. Whether or not your executors need a Grant of Probate will depend on the type and amount of your assets.

    Generally speaking probate will be required when an estate is worth in excess of £25,000.

    For further information please contact Carol Lockett on 01394 279636 or email carol.lockett@jackamans.co.uk.

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