WHAT IS A WILL?

A Will is a document that gives you the power to decide what should happen to your property, possessions and money when you die. Plus, you can make sure you don’t pay more Inheritance Tax than you need to.

Your Will can be changed any time during your lifetime provided you have the capacity to do so.

You should review your Will from time to time. If your personal, property or financial circumstances change, you should change or update your Will.

WHAT IS A TRUST?

A trust is an arrangement where property is held by one party for the benefit of the other party/parties.

WHO CAN WITNESS MY WILL?

A Will must be witnessed by two independent people aged at least 18 years old. Your witnesses do not need to know the content of your Will.  They must be present while you are signing your Will, that is, they must be in the same room with you.

The witnesses cannot be:

  • blind
  • beneficiaries in your Will
  • spouses or civil partners of beneficiaries in your Will
  • anyone related to you
  • under 18.

WHAT KIND OF GIFTS CAN I LEAVE IN MY WILL?

  1. Specific Gifts – gifts of items

Examples: giving your jewellery to your daughter or your golf clubs to your nephew.

  1. Pecuniary Gifts – gifts of money

Examples: giving £100 to each of your godchildren or £1000 to your favourite charity.

  1. Residuary Gifts – what’s left

Your residuary estate is what is left after all outstanding debts and specific or monetary gifts have been distributed. This ensures that your remaining estate passes to your chosen beneficiaries rather than being subject to the intestacy rules.

CAN GIFTS IN MY WILL FAIL?

Yes. A gift may fail because the item has been given away during lifetime, or the estate is insolvent, in which case the Will is read as if the gifts were not made or the sum is reduced. If it fails because the beneficiary has died then, unless there is a substitute, the gift falls into the residuary estate.

CAN I ABBREVIATE NAMES IN MY WILL?

It’s best not to. When making your Will, use people’s full names and details wherever possible.

DO I NEED TO PROVIDE FOR DEPENDENTS IN MY WILL?

While the law of England and Wales permits you to write the Will of your choice, if you fail to make provision for someone from the following list, then that person, or their representative, may bring a claim for Reasonable Financial Provision.

The list of dependants is:

  • spouses
  • ex-spouses
  • recently separated partners
  • civil partners
  • ex-civil partners
  • co-habitees
  • children
  • other dependants

WHAT IS A MIRROR WILL?

Mirror Wills are suitable for anyone who is married or in a civil partnership, provided both partners have identical or very similar wishes.

WHEN DOES MY WILL BECOME VALID?

A Will becomes legally valid when it is properly signed and witnessed.  It should also be dated.

WHERE SHOULD I STORE MY WILL?

You should store your Will in a safe and secure place and tell your executors where it is.

HOW DO I CHANGE MY WILL?

A Will can be changed by writing a new valid Will or making a valid Codicil to the Will. A Codicil is a document that amends a previously executed Will, rather than replacing it.  However, they are being used less and less as Wills are being prepared using computers.

WHAT IS A LASTING POWER OF ATTORNEY?

A Power of Attorney allows you to appoint somebody else to manage your affairs on your behalf.

WHEN SHOULD I MAKE MY LASTING POWER(S) OF ATTORNEY?

In order to create a Power of Attorney you will still need to have the capacity to make your own decisions. It is essential that you make the Power of Attorney while you are still capable of making decisions about who to appoint as your attorneys and what powers you want to give them. Many people now create a Power of Attorney well before they need it as it is impossible to create a Power of Attorney once you have lost capacity. Don’t leave it too late.

IF I HAVE A WILL DO I STILL NEED A LASTING POWER OF ATTORNEY?

Yes. A Will relates to how your estate is distributed when you die, and it is your executor who has responsibility for dealing with your estate on death. An executor does not have the right to manage your affairs during the course of your lifetime. If you want someone to handle your affairs whilst you’re still alive, you will need to appoint an attorney.

IF I GRANT A POWER OF ATTORNEY TO SOMEONE CAN I STILL MANAGE MY OWN AFFAIRS?

Yes.  You should be encouraged and supported by your attorney to continue dealing with your affairs (or as much of them as you can manage) for as long as possible. Powers of Attorney are typically created by people who are happy to continue handling their own affairs until they reach a point in the future when they are no longer capable of doing so. At this time, the Power of Attorney gives your chosen attorney the power to assist you in managing your affairs of if you are unable, to manage your affairs on your behalf.

ARE THERE DIFFERENT KINDS OF POWER OF ATTORNEY?

Yes.  There is one for Property and Financial affairs and one for Health and Welfare.

DO I HAVE TO REGISTER MY LASTING POWER(S) OF ATTORNEY STRAIGHT AWAY?

No, but ideally you should.  If you leave it for your attorneys to register once you have lost capacity and there is a fault on the LPA it is too late to rectify it.  We recommend that you make and register your Lasting Powers of Attorney at the same time.

ARE POWER OF ATTORNEY DOCUMENTS LEGALLY BINDING DOCUMENTS?

Yes.   A Power of Attorney is legally binding if it has been created correctly by the individual whilst they have the mental capacity to do so.

CAN I UNDO MY LASTING POWER OF ATTORNEY ONCE IT HAS BEEN REGISTERED?

Yes.  In England and Wales, an individual can end their Lasting Power of Attorney, even if it has been registered, at any time as long as they still have mental capacity, by creating a Deed of Revocation, which must be sent to the Office of the Public Guardian.

HOW DOES MY ATTORNEY USE THE REGISTERED LASTING POWER OF ATTORNEY?

Your Attorney will need to inform banks and other financial services providers that they have Power of Attorney to act – they will be asked to provide the relevant document to prove what they say. In England and Wales, this is the Power of Attorney document which has been registered by the Office of the Public Guardian.

WHAT HAPPENS IF ONE OF MY ATTORNEYS DIES?

If the attorney dies before the Power of Attorney is being used, you will usually be able to create another Power of Attorney appointing a replacement attorney. If the death occurs after you have lost mental capacity, and you only have one attorney, the Power of Attorney will become invalid. It is for this reason that we recommend that you appoint a Replacement Attorney when creating your Power of Attorney.

WHAT IS A DONOR?

You are the donor – that is the person making the Lasting Power of Attorney.

CAN THE DONOR’S MONEY BE MIXED WITH THE ATTORNEY’S MONEY OR HELD IN A JOINT ACCOUNT IN THE NAMES OF THE DONOR AND THE ATTORNEY?

The donor’s accounts must be kept separate to the attorney’s. But in some cases they may have joint accounts – where a husband is acting for a wife or vice versa, for example. Providers of these accounts should be notified.