If you’ve been watching the recent ITV drama, you’ll know that it covers the story of a woman named Alice whose husband sadly passes away after falling down the stairs off their new home. The drama depicts Alices life in the period following his death with scenes exploring the struggles that loved ones can be left with when their partner passes away without a Will.

We’ve put together some information below on a range of topics covered in the show.

1. Can you really be buried in your garden?

Many viewers will have been surprised to learn that it is actually legal to arrange a burial on your own land. However, as the show evidences there are certain considerations which should be taken into account when planning a burial as discussed below:

Firstly, you will need permission from the freehold owner of the land. Not only do they need to agree to the burial but they must  prepare and keep a “Burial Register” pursuant to the Registration of Burials Act 1864 so that it can be passed onto future owners of the land. A Burial Register is a document that records details of the deceased and of the burial, including an accompanying plan showing the grave’s location.

Secondly, it is necessary to check that there are no restrictive covenants affecting the land which may prohibit burials.

Thirdly, you need to consider whether planning permission is required. A single burial is unlikely to constitute “a material change in use” and therefore planning permission is unlikely to be required but it is worth checking this with the local authority. Furthermore, the potential exemption from having to obtain planning permission only applies to the burial itself and not to gravestones, memorials etc and if required, advice on planning should always be sought.

Fourthly, the person responsible for the burial must obtain a Certificate of Authority. This will be issued by the local authority’s Registrar of Births, Marriages & Deaths (or if a Coroner is appointed to investigate the death, from the Coroner). This certificate must be obtained before the burial takes place, and a notice must be returned to the local authority’s Registrar after the burial.

The Environment Agency and/or local authority’s Environmental Health Department should be consulted as it may be necessary to obtain their authorisation for the burial, in particular as a burial site must not be within certain specified distances from water.

Where a dispute arises concerning funeral or burial arrangements the starting point for who has authority is the executor. Read our burial dispute article here to learn how the Courts deal with these types of disputes https://www.clodes-solicitors.com/burial-disputes-and-the-law/

2. What will happen to my partners estate when they die if we’re not married?

If your partner has a valid Will, then their Will decides how their Estate will be divided. 

Whether you are married or not, any jointly owned assets will pass to the surviving owner such as a joint bank account or a home owned as joint tenants. Assets owned individually however won’t automatically go to a surviving unmarried partner.

If your partner doesn’t have a Will, they will be classed as dying intestate and the Rules of Intestancy will apply to any individually owned assets.

The Rules of Intestacy state that their inheritance goes to their closest living blood relatives in a specific order. If you have children together, they will be recognised as your partner’s next of kin however as an unmarried partner you have no right to inherit and should get legal advice about whether you can make an Inheritance Act Claim for further information click the link https://www.clodes-solicitors.com/service/contested-probate/

An Administrator will need to be appointed to deal with the Estate and apply for a Grant of Representation, also known as a Grant of Letters of Administration, click the link if you need further information https://www.clodes-solicitors.com/service/estate-administration/.  You may not be allowed to apply to become an Administrator, particularly if your partner had blood relatives who can make this application. This is because you are not related by marriage or blood.

If you have recently lost your partner and are concerned about where you stand legally, contact us today. Alternatively if you wish to make sure that your partner is protected when you die contact us to discuss drafting your Will.

3. Will my children automatically inherit my estate if I die without a Will?

As discussed above, if someone dies without leaving a Will, they will be classed as dying intestate and the Rules of Intestancy will Apply. The Rules of Intestacy state that any inheritance goes to their closest living blood relatives in a specific order.

Children of an intestate person will inherit but it will depend on the circumstances as evidenced below:

• If there is no surviving partner- any children will inherit the whole estate. If there is more than one child the estate will be divided equally between them.

• If there is a surviving partner-  any children will inherit (in equal shares if more than one) but only if the estate is valued at over £270,000. The surviving partner will inherit the first £270,000 as well as an absolute interest in half of the remainder. The remaining half of any estate over £270,000 will be divided equally between any surviving  children.

A child whose parents are not married or have not registered a civil partnership and adopted children (including step-children who have been adopted by their step-parent) can inherit under the rules of intestacy. Children do not receive their inheritance immediately but rather it is managed by trustees until they reach the age of 18.

4. Can I access my partners bank accounts instantly when they die?

The short answer to this question is unfortunately no. You will be required to provide the bank with a copy of the death certificate at which point their account will be frozen.

Most banks won’t allow you to withdraw money from an open account of someone who has died (unless you are the other person named on a joint account) before you have been granted probate or letters of administration. 

With that said, some banks may release money without a grant, but this is usually capped at somewhere between £5,000 and £50,000 depending on the bank.

If you are waiting for a grant of probate, the bank may let you access money in the account to pay for expenses relating to the death such as the funeral or probate fees.  

5. Can someone give up their rights to inheritance?

Yes you do not have to accept any inheritance and can ‘disclaim’ it. If you do this your share of any inheritance will stay as part of the deceased’s estate and will be re-distributed. 

In such a scenario you will have no control over where your share ultimately goes. It could pass to someone who you would prefer not to receive it. 

If you are considering disclaiming any inheritance we recommend taking independent legal advice. It may be that a post death variation is something that should be considered.

If you have any queries in relation to any of the situations discussed above contact us on 02920 765050. We can meet with you via Zoom or in person.

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A common query we receive is that P has lost capacity - how does one remove an Attorney appointed under an LPA ?

The Mental Capacity Act 2005 under S.22 and S.23 gives the Court power to revoke an LPA or to determine any question as to the meaning or effect of a lasting power of attorney.

One must carefully consider whether the allegations have merit and who it is proposed would deal with the persons financial affairs should the LPA be revoked.

One could raise there concerns directly with the Office of The Public Guardian or the attorney.

Alternatively one could consider making an application to the Court of Protection to revoke the Power of Attorney and appoint X as a Deputy. If time is of the essence an application to the Court for Directions or Revocation maybe prudent following a letter before action.

If a person is considering a Court of Protection application they should seek legal advice before commencing.

Where a Court application for revocation is being considered the donor would need to be assessed by an expert to ascertain the following:

1. Does P have capacity to revoke their LPA ?
2. Can P validly enter into a new LPA ?
3. Does P lack capacity to request accounts from their attorney ?
4. Did P lack capacity to make the gift or relevant financial decisions at the relevant time ?

The Court can consider any past behaviour or apparent prospective behaviour by the attorney. Provided that X does not have capacity the Court has the power to take whatever steps it regards as appropriate in P's best interests, whether that be by revoking the LPA or by taking some other course.

If you have concerns about a loved ones Attorney contact Clodes Solicitors on 02920 765050 or at https://www.clodes-solicitors.com/service/lasting-power-of-attorney/ #solicitor #local

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