This time of year, is full of people making and breaking new year’s resolutions. A new year, a new decade, means that people look to the future. Part of that future might be considering what would happen to your family and assets if you became very ill or – heavens forbid – if you died. It is a great time to review your Will and consider whether to make a Power of Attorney and avoid future problems for your loved ones.
Powers of Attorney
Powers of Attorney are not just for the elderly. If you became temporarily very ill or were in an accident, it might be difficult for others to access your accounts to pay your bills or mortgage. Who would make decisions about your care if you could not? Appointing attorneys to act for you if you became incapacitated is a sensible and reassuring step. You would need to talk to the people you wanted to appoint to make sure they understood what you wanted them to do. You should also discuss the matter with a solicitor to ensure that you understood what powers you are creating for the Attorneys and what limits you could put on those powers.
Not having a Will can cause difficulties if the worst happened – would your partner or children be able to continue to live in the house? Who would get your money? Would it go to distant relatives rather than those you love? If you don’t have a valid Will, your Estate Will pass under the intestacy rules. This depends on your personal circumstances; if you are married or in a civil partnership, your spouse or civil partner gets the first £250,000 of your estate, and then the balance is shared between your spouse / civil partner and your surviving children. If you are not married or in a civil partnership, your partner Will not receive anything under the intestacy rules, but your children would. If you don’t have children, your estate would pass to other relatives. It is therefore important to ensure that you set out who you want to have what.
Is your Will up to date?
Have you separated from your partner? Have you had more children or grandchildren? Do you own a different property? Has a beneficiary changed their name? Make sure that you review your Will on a regular basis so that it is up to date. If you need to make changes you can either execute a codicil if they are minor changes, or you may need to make a new Will which can be done fairly easily.
Has your Will been done properly?
Make sure your Will is done properly – I have had to assist many clients whose partner’s Will was not drafted properly, or which left out vital clauses. You can draft a Will yourself, but make sure you get it properly witnesses (by two witnesses who are not related to you and who watch you sign the Will).
Will writers are a cheap option, but they are unregulated and do not have to have insurance to cover any later claims if they do it wrong. Whilst many Will writers are excellent, some are not; making claims against them later for a poorly drafted Will can sometimes be very difficult.
Whilst often more expensive, solicitors are much more experienced in Will writing, they are trained and regulated and must have insurance to cover claimants if they make a mistake. That is often much more reassuring and worth paying the extra money for.
Are you leaving someone out of your Will?
Consider whether you are excluding anyone from your Will. Are you leaving out an errant adult child, or favouring one person over another? Will they later object? If so, you should consider writing a letter of wishes to be held with your Will – this can set out why you have excluded someone or favoured another, and can be used as evidence of your reasoning if they later challenge your Will.
Getting evidence of your capacity
If you are elderly, ill or in hospital when you make your Will, there may be concerns or challenges later on that you did not have the capacity to make a valid Will. Getting a Will drafted by a solicitor, and getting a capacity assessment from your GP or another expert at the time you made your Will should help put a stop to any arguments about whether you had capacity to make that Will.
If you think that there may be arguments about your Will after you have gone, consider carefully about what might be alleged and whether there is anything you can do now. Speaking to a solicitor to discuss when you draft your Will this is a good option. I am a specialist in Will disputes and there are many cases I see where the problems and claims could have been avoided if the Will had been done properly or had been updated.
Miranda advises both private and commercial clients on a range of disputes, including contentious probate.
Please get in touch if you have any questions that we can help with: 01273 477071