Making a Will is sensible, practical and brings you peace of mind. It isn’t only something for the wealthy. Everyone should do it. Without one there could be competing claims on your estate and your nearest and dearest may not automatically get everything. It is essential to make a Will for the sake of their security.
A Will is a serious legal document and has to stand up to close scrutiny. A layman can, notwithstanding the best of intentions, get it wrong.
With your legal adviser’s expertise, you can ensure that your possessions will be dealt with as you wish. You will also be able to get personal, confidential advice on any point you would like to discuss and help to clarify your ideas and cater for eventualities you may not have considered.
Most trusts fall into one or two main categories depending on how the income or benefit (dividends, interest, rents, free use of property etc.) is dealt with:
There are several types but the common feature is that the benefits are allocated at the trustees’ discretion to any one or more of several beneficiaries. The trustees might even decide, for a time, to benefit no one; the income being accumulated for future use.
When a person dies leaving a Will then it is often necessary for the executors to obtain a grant of probate. when there is no will there is no-one immediately obvious who would apply for a grant, which is called Letters of Administration. This is therefore the first hurdle to overcome.
Once a grant is obtained then the assets may be dealt with. The terms of the Will are then carried out. Where there is no Will statute sets down what must happen to the assets. This often means that they do not go to whom you might have wished.
Where two people buy a house as joint tenants and one of them dies, the deceased’s share will automatically pass to the survivor regardless of what the deceased’s Will might say. It is not possible for either party to leave his or her share of the property to someone else in their Will.
With a tenancy in common, each of the purchasers owns a share of the home – either equally or as otherwise agreed between them – and the surviving partner will not automatically inherit the whole property. The wishes expressed in the Will of the deceased person will determine who will inherit.
If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make decisions on your behalf. This is both costly and time consuming.
Most care and treatment decisions can be made on your behalf without the need for a court application. However, if you wish to avoid potential disputes, you can give a person(s) authority to make those decisions on your behalf by making a health and welfare LPA.
A power of attorney is a legal document where a person gives another person or persons (the attorney) authority to make certain decisions on his or her behalf.
There are two types of LPAs: