Making a will is something which we tend to put off for another day, yet is probably the most important document which anyone could ever write. It confirms what you wish to happen to your property and assets (called your estate) and makes the process of administering the estate easier for the survivors. If a will has been written, the executor(s) will be able to apply for probate without further formality.
What is probate?
Probate is simply proving the validity of a will and ensuring that the executor(s) knows exactly what to do. There are certain legal formalities which must be carried out, including payment of any inheritance tax due, before an application for probate can be made.
If a person dies without making a will (called dying intestate), then a different procedure must be followed, in which the court grants letters of administration and the estate is distributed according to the rules of intestacy. For example, a spouse or civil partner will not automatically inherit the whole of the deceased’s estate and, in the case of unmarried couples, there is no provision at all for the surviving partner under the rules of intestacy!
The process can take a lot longer, is much more expensive and is often the point where family disputes start, simply because no will was written!
A partial intestacy can occur if a will has been made, but has not been written correctly or does not dispose of all of the deceased’s property.
What happens if there is no will?
If you die without making a will, it is quite possible that your estate will not pass in the way you might have expected – and a considerable proportion of your wealth might end up in the taxman’s hands!
Significant losses to the estate can be incurred if the will is not drafted correctly and in accordance with current legislation. Homemade wills are very often found to be invalid; it is important, therefore, to obtain proper legal advice.
I already have a will – do I need to review it?
If you have already made your will, it should be reviewed from time to time, as your personal circumstances change, for example marriage, divorce, the birth of a child or grandchild. Most people are unaware that marriage invalidates an existing will, while divorce will invalidate part, if not all, of a will.
Simple changes can be made to an existing will, in order to take advantage of new legislation (such as the recent changes made to the inheritance tax laws), thereby ensuring that your loved-ones benefit, rather than the taxman!
Lasting Powers of Attorney
An LPA is a legal document which allows you to choose someone now whom you trust to make decisions on your behalf, at a time in the future when you no longer wish to make those decisions yourself or in the event that you lack the mental capacity to make them.
It is no longer possible to grant an ‘enduring power of attorney’ (EPA), although existing ones may still be valid.
EPAs have been replaced by two new forms of LPA, one of which deals with your property and financial affairs, while the other takes care of health and welfare.