THINGS TO CONSIDER BEFORE MAKING A WILL

We all spend our lives working to build our lives and increase our assets to lead a happy and satisfied life. You may have a house(s) or flat(s), shares, savings, investments, personal possessions and so on. All of these assets form your “ESTATE”. Making a Will ensures that when you die, your estate is being shared according to your wishes and is later owned by the people you wish.

Everyone needs a Will. Your Will lets you decide and control what happens to your estate after your death. If you make a Will, you can also make sure you do not have to pay more inheritance Tax than required. If you die without a Will, then law decides who gets what and how much from your estate.

Here are few things which you need to consider before making a Will:

  • Layout your assets. Finalise what you own and what are your liabilities.
  • Decide who would be the Beneficiaries – who gets what after your death. If any of the beneficiaries pre-decease you, who would you like to benefit from their share? Their partner, or children or anyone else? Or would you like it to fall back in your estate?
  • Executors/ Trustees of your Will – They are the people who would be responsible for managing your estate according to your Will and implementing your wishes after your death. They should be the people you trust and believe would work in the best interests of your wishes after your death.
  • Children and Guardians – If you have minor children, it is important to consider who would look after them after your death. For such a reason, you can appoint a guardian in your Will to look after your minor children. But you need to discuss such a scenario with the persons you would be appointing as Guardian before making a Will.
  • Specific Gifts – You need to map out what gifts you would like to make through your Will and to whom. It can be in the form of money gifts or specific property or any of your personal possessions.
  • Charities – You can also make a gift to any charity through your Will. If there is any particular charity that you have an affinity for, then leaving a gift for them would be perfect way to acknowledge it. Making a gift to charity is exempted from any Inheritance Tax liability.
  • Residuary Estate – This is what is left in your estate after you have made all the gifts and given away our assets and paid all the liabilities. You need to decide who you would like to receive or benefit from your residuary estate. You can leave your residuary estate either to your partner, or children, or charity or any other individual(s). If you want to leave it to your minor children, then such an estate would be held on trust for them till they reach the age of 18 or 25.
  • Exclusions – This area lets you exclude certain people from benefiting from your estate upon your death. It could be your previous partner(s), or people from other family complexities, or people you specifically do not want to benefit from your Will.
  • Funeral Directions – Before making a Will, you need to consider about your preferred funeral arrangements: would like to be cremated or buried? Any specific place for burial? If cremated, where would like your ashes to be placed or scattered? Would like to donate organs?
  • Storage – It is important you store your Will in a safe place and let your family members or executors know where it has been stored in the event of your death. We at ADRIANJKNIGHT LTD do offer a storage facility, where your important legal documents can be stored safely and securely by our regulators at Lincoln and would also be stored at National Will Archive.
  • Review – It is important to review your Will every 2 or 3 years and update it in case of any changes in your life – family or financially.

 

LASTING POWERS OF ATTORNEY

It is sensible for you to consider what will happen if at any time of your life, you are unable to manage your own affairs, whether temporarily or permanently. Loss of mental capacity can occur at any age as result of accident or illness. It is usually better if you have chosen and authorised other trusted person(s) to act on your behalf. This can be done by creating and registering the Lasting Power of Attorney.

What is a Lasting Power of Attorney?

The Lasting Power of Attorney (LPA) is a legal document which lets you appoint another trusted person(s) to act on your behalf. Under an LPA, a donor is able to confer on the attorney(s) authority to make a decision about the donor’s personal welfare and/or the donor’s property and financial affairs.

Anyone over the age of 18 can have an LPA. However, it is actually a good idea to set up an LPA as soon as possible especially if you have a condition which is likely to cause a loss of mental capacity later on, such as dementia.

What are the types of LPA?

There are two types of LPA:

  • Property and Financial Affairs: This LPA gives someone the authority to manage your property and money. This could include bank or building society accounts, bills, collecting a pension o benefits and even selling your home.
  • Health and Welfare: This LPA covers areas surrounding your health and well being, including decisions around your daily care (washing, dressing, eating etc), medical care and treatment or whether it is time to move into care home.

Who can be an Attorney?

The attorneys need to be over 18 and not subject to a debt relief order or declared bankrupt. However, it is advisable to select person or persons who know you well, is organised and interested in ensuring your well being and most importantly who can be trusted with such important decisions of your life. You can also select legal professionals for being your attorney.

A person(s) selected to act as an Attorney can refuse to act and so it is advisable to consult with them before signing and registering the LPA. Once it is registered, if the attorney refuses to act an Attorney, it is known as “revoking” an attorneyship. If the LPA is registered and attorneys must act jointly (ie all together for all decisions), revoking the attorneyship will invalidate the LPA and a new LPA will have to be made, unless there are replacement attorneys ready to step up. If the attorneys act jointly and severally, then the remaining attorneys can continue to act even if one of them revokes their attorneyship.

New attorneys cannot be added to a registered LPA. In such a case, a new LPA would have to be made and registered with the Office of Public Guardian.

Why is a Certificate of Capacity required?

A Certificate of Capacity is required to establish that the donor, at the time of making an LPA:

  • Understands the purpose of the LPA and the scope of the authority conferred under it;
  • No fraud or undue pressure is being used to induce the donor to create the LPA; and
  • There is nothing else which would prevent an LPA from being created.

What is the price for an LPA?

 The price varies depending on whether you are setting up an LPA in England and Wales, Scotland or Northern Ireland. In England and Wales, it costs £82; in Scotland it costs £73 and in Northern Ireland it costs £115. These fees refer to each type of LPA, so if you are setting up two types (ie Financial and Property & Health and Welfare), you will have to pay the fees twice. However, if your income is less than £12,000 per annum you can be eligible for certain financial exemption or remission depending upon valid financial evidence for the same.

How much time is required for registering an LPA?

The LPA cannot be used until it is registered with the Office of Public Guardian. Registering an LPA usually takes around 8 to 10 weeks and sometimes even longer. This allows for the time needed to allow for the notification of those in the “People to be notified” section. Once registered, the LPA is valid and may be used by the attorney(s), subject to any express restrictions mentioned in the LPA.

What would happen if I do not make an LPA?

If you do not make an LPA and become unable to make decisions for yourself, it can result in serious financial, legal and emotional problems for your family. Your finances could be frozen until the Court of Protection appoints a deputy. You would have no control over who is appointed and family and friends do not automatically have the right to take over your affairs.

You can choose to make an LPA either with or without any legal professional. Many people however choose a legal professional to make sure that everything is filled out correctly and does not cause hassles in setting it up.

As part of writing their Will a testator will choose people they trust to act as their executors after their death. These are the people who will deal with the administration of their estate and distribute it following the terms of the Will. Of course sometimes many years pass between the writing of the Will and the testator’s death and in this time things can change. The executors could pass away before the testator, or lose capacity, or when the time comes be otherwise unable or unwilling to act. So what happens if there are no executors to act when the testator dies?

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