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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33507
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I am looking for some preliminary legal guidance in relation

Resolved Question:

I am looking for some preliminary legal guidance in relation to a situation involving my Mum (aged 68) and her relatively new husband (aged early 80s); they were married in September 2012 having been co-habiting for around 2 years; she has taken his surname. They met via the lonely hearts pages around April/May 2010 and he moved in soon after, having been married twice or maybe 3 times previously. My Mum was divorced from my father in the late 90’s and she had been living by herself ever since.
His most recent divorce left him with very little in the way of assets (he was forced to sell his only remaining property to pay off his previous wife) and I understand from my Mum that his only real income is via his pension which he built up during his career in finance; he has been retired for a number of years now. He has 4 children from previous marriages of varying ages but all are earning and not dependent on him financially.
In terms of my Mum’s financial situation, she has 100% cash ownership of the property they both live in; she has not informed me if the property has her new husband’s name on the deeds. Within that property are some extremely valuable antiques, works of art and ancient family heirlooms worth a lot of money most of which were inherited from her parent’s estate. In addition she has a portfolio of stocks managed by a discretionary fund manager which is money that she inherited from her parent’s estate and has been in the family for generations; I do not know if this portfolio has his name against the account. Further, there is a significant family trust managed by another fund manager, which I have limited details on but I understand cannot be broken unless agreed to by all the trustees; this provides my Mum and her sister with income.
I was recently informed by my Mum that she and new husband have decided to put their current home on the market and look for properties in Spain. The plan seems to be to release cca. £400k from the sale of their current home and put this into the portfolio of stocks to be managed by their discretionary fund manager. In terms of the contents of the house, I understand my brother and I will be given any furniture we want and the remainder will be put into storage, I presume with both their names on the account. They are planning on renting various properties in Spain before purchasing somewhere together.
My principle questions are as follows:
· Should they get divorced, what claim would he have over Mum’s assets if a) They are all still registered solely in her name; b) They are registered in both their names?
· How can Mum protect her assets in the event of a divorce, especially the portfolio of stocks and family trust?
· Should something happen to my Mum, what claim would he have over her estate i.e. any properties purchased together in Spain, the proceeds from the sale of the house they currently reside in, the portfolio of stocks and the trust which provides her and my aunt with income?
· Should my mum have a will in place outlining her wishes, can this be challenged by him in any way? How can it be made as unequivocal and secure as possible?
· Should my mum outlive him, can he leave any of her/their estate to his children in his will?
· What measures can I take or ask my Mum to take to protect herself and the family estate?
Submitted: 2 years ago.
Category: Family Law
Expert:  Nicola-mod replied 2 years ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 2 years ago.

Hi, thanks I am happy to wait.

Expert:  Nicola-mod replied 2 years ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
What income do they each have?
Clare
Customer: replied 2 years ago.

Hi, I'm not sure what exact income either receives to be honest. My Mum receives a modest income through dividends from the portfolio of stocks and shares and he receives an income from his pension. I am almost certain the income my Mum receives is greater than his pension but I do not know the precise amounts.

Thanks,

Alex

Expert:  Clare replied 2 years ago.
Hi
is your mother likely to be receptive to taking measures to protect her funds?
Clare
Customer: replied 2 years ago.

She could be, a post nuptial agreement may be a possibility. In reality however, I don't think a divorce is on the cards; this question is more about estate planning/protection.

I would really like to understand for my own benefit what he can claim when he dies. Could he for instance claim in his will her estate she inherited and leave this to his children?

If her assets are in both their names and she dies first, would he take entire ownership of those assets? How would this be different if those same assets are only in her name? How can a will be made secure so that he is not able to claim these assets?

Expert:  Clare replied 2 years ago.
Hi
In the event of a divorce in the UK the court has wide powers to distribute the monies in any way the Judge thinks fit - with the length of the marriage and the source of the assets being the principle factors - not whose name is ***** ***** asset
However assets that are inherited, are not the matrimonial home and are not necessary to touch to ensure that her husbands basic needs can be met will not be brought into the equation
On that basis the only action that she can take is to NOT put any such assets into joint names
The Trust is safe in any event
A Post Nuptial agreement could also be an option
Any assets that are held in joint names will pass to the survivor outside of the Will unless there is a clear intention that it should be otherwise
If there is no Will then her husband gets her belongings plus the first £250,000 or her assets - and a life interest in half the remainder,
If there is a Will and it does not make adequate provision for her husband's housing needs then he is able to make a claim against the estate - so she needs to be sure that her Will is current and makes proper provision for him
Finally if he dies first then no he cannot leave her assets to anyone else.
I hope that this is of assistance - please ask if you need further details
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33507
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
Clare and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.

Thanks Clare,

Please can you clarify: "Any assets that are held in joint names will pass to the survivor outside of the Will unless there is a clear intention that it should be otherwise"

Thanks

Expert:  Clare replied 2 years ago.
Hi
Unless there is a specific agreement that they hold the assets as "Tenants in Common" (property) or "in common" (accounts) then it is assumed that the whole value passes to the survivor outside of any Will
Clare

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