Frequently Asked Questions.

Q: Why should I make a Will?

A: Your Will serves as your means of instructing how your money, possessions, and property, collectively known as your ‘estate,’ should be distributed after your death. Without a Will, the law determines the distribution of your estate, which may not align with your preferences.

Crafting a Will is essential because:

  1. If you don’t create a Will, your assets will be distributed according to the intestacy rules, which may not reflect your desired distribution.
  2. A Will can help minimise the potential Inheritance Tax liability on the value of the property and assets you leave behind.
  3. Having a Will becomes particularly crucial if you have dependents, such as children or other family members relying on you financially, or if you intend to bequeath assets to individuals beyond your immediate family.
  4. Your Will provides a clear directive on who should inherit your money, property, and possessions upon you passing.
  5. Additionally, a Will allows you to communicate any other preferences or wishes, such as specific instructions for your burial or cremation.
Q: What happens if I don’t leave a Will?

A: If you pass away without a Will, the distribution of your money, property, and possessions will be determined by the law rather than your specific wishes. This could result in your assets going to individuals you hadn’t intended, or someone you intended to benefit receiving nothing.

In the absence of a Will, the legal system dictates the allocation of your assets, regardless of your past relationships with those individuals. Crafting a clear Will specifying your beneficiaries can prevent additional distress for your family or friends during an already challenging period.

Q: What is ‘Intestacy’?

A: Passing away without a valid Will is referred to as intestacy or dying intestate. In the absence of a Will, several common rules apply:

  • If you are unmarried and not in a civil partnership, your partner has no legal entitlement to your possessions upon your death regardless of how long you have been together.
  • If you are married, your spouse may inherit the majority or entirety of your estate, potentially leaving nothing for your children. This remains true even in cases of separation, excluding divorce. There is also potential risks if your spouse did inherit everything and then later remarried, your children could be disinherited as again without a valid Will, everything will pass to the new spouse.
  • The Inheritance Tax imposed on your estate may be higher without a Will than it would be with one.
  • In the absence of any living close relatives, your entire estate will become the property of the Crown or the government.
Q: Unmarried couples- should we get a Will?

A: Yes- It is crucial for unmarried couples to create Wills if they wish to ensure that their partner inherits their estate after death. Anything in joint names will pass to the survivor but anything in sole names will be distributed out according to the intestacy rules.

Q: What’s all the legal jargon?

A: Executor: An individual entrusted with the responsibility of fulfilling the directives outlined in your Will and obtaining the Grant of Probate.

Beneficiary: A person designated to receive a share of your assets or possessions as specified in your Will. A beneficiary may also serve as an Executor.

Trustee: An individual tasked with managing specific assets on behalf of other beneficiaries, often children or vulnerable adults. They possess special authority to make financial and welfare decisions for the designated individuals.

Guardian: Someone you’ve appointed to care for your children if they are under the age of 18.

Estate: The entirety of your possessions and assets at the time of your death.

Probate: The legal validation process for your Will. Your Executor must secure a Grant of Probate before they can distribute your estate in accordance with the instructions in your Will.

Q: Does marriage, re-marriage or divorce affect my existing Will?

A: YES- marriage or remarriage renders existing Wills null and void. Conversely, in the event of a divorce, the Will remains unchanged. This juncture is pivotal for reassessing the requirements of all family members, including any children from prior relationships.

Q: Can I safeguard my share of my Property within my Will?

A: Many couples we assist choose to incorporate a Property Protection Trust (PPT) into their Wills. This essentially entails safeguarding the share of the home belonging to the deceased partner by placing it in a trust. This arrangement enables the surviving partner to continue residing in the home for as long as necessary. It is particularly advantageous for couples concerned about the possibility of their children being disinherited in case of a future remarriage.

Additionally, there are potential advantages concerning care fees. If you require care after the passing of your spouse or partner, only your portion of the property is subject to assessment as part of your assets. The share belonging to the deceased partner cannot be taken into consideration in this context.

Q: I have godparents for my children, will these be their guardians if I don’t have a Will?

A: No, having godparents for your children does not make them legal guardians.

If you do not have a Will specifying guardianship arrangements for your children, the decision of who becomes their legal guardian will be determined by the legal system. This process may involve family members expressing their interest, and the court ultimately deciding based on what it deems to be in the best interest of the children.

To ensure that your preferences are followed and to avoid potential conflicts, it is advisable to create a Will where you explicitly name the individuals you wish to act as legal guardians for your children in the event of your passing.

Who can make a Will and when should I make one?

A: Any individual aged 18 or older with the mental capacity to make decisions can create a Will.

While crafting a Will is essential at any point, it becomes particularly crucial during certain life stages. Consider making a Will if you find yourself in any of these significant life situations:

  • Purchasing a house
  • Co-habiting with a partner
  • Welcoming children into your family
  • Getting married
  • Going through a divorce
  • Seeking to minimise inheritance tax or address care fee
Q: Do I need to review my Will?

A: As a standard practice, it is advisable to review your Will every 3-5 years.

Regular reviews help ensure your contentment with the stated wishes and that your Will remains an accurate reflection of your desired estate distribution after your passing. Additionally, it is crucial to reassess your Will in the face of major life events, such as purchasing a house, cohabiting, welcoming children or grandchildren, marriage or divorce.

Q: What is an executor and who should I choose?

A: An executor is an individual appointed in a Will to carry out the deceased person’s wishes and administer their estate after they pass away. The role of an executor involves several key responsibilities for example:

  1. Probate Process: The executor is responsible for obtaining Grant of Probate
  2. Asset Identification and Valuation: The executor needs to identify and gather all the assets of the deceased, including property, bank accounts, investments, and personal belongings. They may also be involved in obtaining valuations of certain assets.
  3. Debts and Expenses: Executors are responsible for settling any outstanding debts and expenses of the deceased, which may include funeral costs, outstanding bills, and other financial obligations.
  4. Distributing Assets: Once debts and expenses are settled, the executor is responsible for distributing the remaining assets to the beneficiaries as outlined in the Will. This involves following the instructions provided in the Will regarding who receives what.
  5. Tax Matters: Executors may be involved in handling tax-related matters, including filing the deceased person’s final income tax return and, if applicable, the estate’s tax return.

It’s crucial for individuals to choose an executor they trust and discuss their wishes with them beforehand. Executors play a significant role in ensuring that the deceased person’s estate is handled in accordance with their wishes.

Q: Why should you have Lasting Power of Attorney (LPA) for Health and Welfare?

A: It is so important to have an LPA in place for several reasons:

  1. Decision-Making Authority: LPA for Health and Welfare grants someone you trust the legal authority to make decisions on your behalf regarding your health and welfare if you become unable to make those decisions yourself. This is crucial, especially in situations where medical or personal care decisions need to be made.
  2. Ensures Your Preferences are Honoured: With an LPA, you can specify your preferences and instructions regarding medical treatments, end-of-life care, and other health-related matters. This ensures that your wishes are known and respected, even if you are unable to express them at the time a decision needs to be made.
  3. Peace of Mind for Loved Ones: Designating someone to have LPA for Health and Welfare can provide peace of mind for both you and your loved ones. It eliminates uncertainty about who should make decisions on your behalf and ensures that the person you trust is legally empowered to act in your best interests.
  4. Avoids Family Disputes: Having a clear LPA can help prevent potential conflicts among family members regarding medical and care decisions. Knowing that you have designated someone to act on your behalf can reduce the likelihood of disputes and disagreements.
  5. Quick Decision-Making: In emergencies or situations where decisions need to be made promptly, having an LPA in place allows your chosen Attorney’s to act quickly and decisively, ensuring that your best interests are prioritised.
  6. Legal Recognition: An LPA for Health and Welfare is a legally recognised document, providing a formal framework for decision-making. Without an LPA, family members or healthcare professionals may face challenges in making decisions on your behalf.

It’s important to create an LPA for Health and Welfare while you are still mentally capable. Waiting until a crisis occurs may result in delays and difficulties in establishing the legal authority needed for decision-making. It normally takes around 20 weeks for the LPA’s to be validated and returned from the Office of The Public Guardian.

Q: Why should you have Lasting Power of Attorney (LPA) for Property and Finance?

A: Obtaining Lasting Power of Attorney (LPA) for property and finance is important for several reasons:

  1. Financial Management: LPA for property and finance grants a trusted individual the legal authority to make decisions regarding your financial affairs, including managing bank accounts, paying bills, and dealing with property transactions. This is crucial in situations where you are unable to handle these matters yourself due to an illness or accident.
  2. Avoiding Delays and Difficulties: Without LPA, if you become mentally incapacitated, your loved ones may encounter delays and difficulties in managing your financial affairs. LPA streamlines the process, allowing for quick and efficient decision-making.
  3. Asset Protection: LPA enables your chosen Attorneys to protect your assets and make informed financial decisions on your behalf. This includes handling investments, paying bills, sorting pensions and ensuring the overall financial well-being of your estate.
  4. Business Interests: If you own a business or have significant business interests, LPA for property and finance is crucial. It allows your chosen Attorneys to make decisions related to business operations, contracts, and financial transactions.
  5. Dealing with Debts and Expenses: LPA empowers your Attorneys to handle debts, pay bills, and manage financial obligations on your behalf. This ensures that financial matters are attended to promptly and responsibly.
  6. Planning for the Future: LPA allows you to plan for the future by appointing someone you trust to handle your financial affairs according to your wishes. This includes specifying any preferences or instructions you have regarding the management of your assets.
  7. Preventing Financial Abuse: Having LPA in place reduces the risk of financial abuse or exploitation. Your appointed Attorney is legally obligated to act in your best interests, providing an additional layer of protection for your financial well-being.
  8. Legal Recognition: LPA for property and finance is a legally recognised document, providing a formal framework for decision-making in financial matters. It ensures that your chosen Attorneys have the necessary legal authority to act on your behalf.

It’s advisable to create LPA for property and finance while you are still mentally capable. Delaying this process may result in complications and challenges for your loved ones when managing your financial affairs in the future.

If you don’t have LPA’s in place for both Health and Welfare and Property and Finance and you lose mental capacity, your family will have to apply for a Deputyship which is extremely time consuming and very expensive.

Q: What is the difference between Lasting Powers of Attorney and a Will?
  1. Lasting Power of Attorney (LPA):
    • Purpose: An LPA allows an individual (the donor) to appoint one or more people (attorneys) to make decisions on their behalf if they become unable to make decisions for themselves due to mental or physical incapacity.
    • Scope: LPAs can cover health and welfare decisions, as well as property and financial affairs. There are separate LPAs for each of these areas.
    • Activation: An LPA is effective while the donor is still alive but lacks the mental capacity to make decisions. It ceases to have effect upon the donor’s death.
  2. Will:
    • Purpose: A Will is a legal document that outlines a person’s wishes regarding the distribution of their assets and the care of their dependents after their death.
    • Scope: A Will covers the distribution of property, assets, and belongings, as well as the appointment of guardians for minor children. It can also specify funeral arrangements and other wishes.
    • Activation: A Will comes into effect upon the death of the individual.

In summary, an LPA is relevant during an individual’s lifetime and is designed to handle decisions if they become unable to do so themselves. A Will, on the other hand, comes into play after a person’s death and addresses the distribution of their estate and other related matters. It’s common for individuals to have both documents in place to ensure their wishes are carried out during their lifetime and after their passing.