What is a Will?
A will is a legal document that lets you specify who should benefit from your property, money and possessions after your death.
Do I need a Will?
If you die without a Will in England or Wales, your estate will be distributed by the laws of Intestacy. This includes a set list of people who will benefit from your estate and this is not necessarily who you may want.
What are Executors?
Executors are the people you chose who will carry out your wishes after your death. They areresponsible for sorting out your affairs, including arranging your funeral, dealing with tax bills, paying off debts and distributing your estate to your beneficiaries.
An executor can also be a beneficiary of your Will. Anyone who is over 18 years old can take this role. It is important to consider who you trust, and who is willing and able to take on this responsibility.
It is advisable to have more than one executor as this acts as a safeguard in case one of the Executors is unable to act. You can also have professional executors, but they will usually charge a fee for this service.
Many people chose to have professional executors because they do not want their families to deal with the legal and financial responsibilities after your death.
I have young children; what happens to them if I die?
If you have parental responsibility over your children and they are under 18 then you can appoint a Guardian to look after your children until they reach 18. This will only take effect if there is no one else with parental responsibility over your children when you die.
Your children can be included in your Will. It is a good idea to consider the age you would like your children to reach before they inherit. This is usually 18,21 or 25 years old.
While they are underage, their inheritance is looked after and managed on their behalf by ‘Trustees’. You can appoint Trustees in your Will, and they are usually the same people as your Executors.
We are unmarried and co habiting; what happens to us?
Unmarried partners and co-habitees have no automatic entitlement to any of the estate of the surviving partner. You need to make a Will to protect your interests.
If you have children, they will inherit everything equally.
If you have no children, your estate will pass to your parents if they are alive.
If they are not alive, then your estate will pass to your siblings and then your nephews and nieces.
Your partner may be able to make a claim if they were financially dependent on you.
Who can be a witness to your Will?
A beneficiary in the Will cannot witness you signing your Will, nor can the spouse or civil partner of the beneficiary. They will be disinherited if they do. Your witness should be independent and over the age of 18.
I own property overseas- is it covered in my Will?
If your assets are held overseas, then it may be necessary for your Will to be valid for other countries as well and you may have to consider the laws of that country.
When should I change my Will?
You may want to revisit and change your Will when your family circumstances change. For example, when you marry, separate from your partner, when you get divorced or when a baby or grandchild is born.
Is my Will still valid after my divorce?
Yes, it is, however, your ex-spouse will be treated as if they died before you, so any gifts left to them will fail and they cannot act as executor. This is only once you have received the Decree Absolute. It is advisable that you make a new Will once you know that the split is going to permanent.
I'm shielding or self-isolating; can I still make a Will?
We have seen a huge increase in the number of people making Wills during the pandemic, but our biggest challenge has been to follow the legal procedure of having the Will signing witnessed by 2 independent people, this has been particularly hard for those people shielding or self-isolating.
The good news is that the Law in England and Wales has been temporarily amended so that the witnesses can be ‘present’ via video link.
If you are shielding or self-isolating and would like to make a Will, please do get in touch and we can arrange video and telephone appointments.
Why is it a good idea to make a Lasting Power of Attorney (LPA)?
An LPA is a legal document that allows you to choose who you would like to make decisions on your behalf. The attorneys are usually trusted friends or family members who will run your affairs, pay bills, etc. An LPA can only be completed when you have mental capacity and is only usually used if you lose capacity. There are 2 types of LPA which appoint attorneys to make decisions on your behalf, one for Property and Financial Affairs and one for Health and Welfare. In all circumstances, the attorney must act in your best interests.
What is a Property and Financial Affairs Lasting Power of Attorney?
This type of LPA can be used even if you have your mental capacity. This is handy if you no longer want to manage your finances or find it difficult to do so due to physical incapacity etc. Your attorneys can for example:
- Pay bills
- Collect benefits
- Sell a house
- Invest money
What is a Health and Welfare Lasting Power of Attorney?
This type of LPA can only be used if you lose your mental capacity. Attorneys can make decisions about:
- Medical treatment
- Whether you continue to live at home or move to a care home
- End of life wishes
What is the value in using a solicitor to deal with Lasting Powers of Attorney?
- We provide advice about and explain the purposes of an LPA
- We create good quality, accurate LPAs
- We support the donor to make the best choice of attorney
- We take on roles in the LPA- for example, certificate provider, witness and attorney (where appropriate)
- We carry out risk assessments, safeguarding vulnerable clients
- We can arrange capacity assessments with medical professionals if needed
- We deal with the Office of the Public Guardian and applications to register the LPAs
- We provide support which includes:
- Reducing stress for the donor
- Providing peace of mind
- Helping clients who don’t have access to computers to make an LPA
What happens if I am unable to make decisions for myself in the future?
If you lose capacity before you make a Lasting Power of Attorney then your family will have to go to court to obtain a Deputyship. This process can be lengthy and more expensive.