Putting Affairs In Order
Last updated: 01/11/2006 - 12:05
For some people, the idea of making a will makes them feel morbid so they shut it out of their minds and think about something else. While such a view is perfectly understandable it is misguided, because young or old, the only thing we can be certain of is we will all die sooner or later.
And if you don't make a will you can be sure your grieving loved ones will receive the last thing they want - an administrative headache as they struggle to cope with what happens with your property and possessions.
Remember, if you don't make a will, then the Government in effect makes one for you. There are fixed rules that dictate where your money and treasured possessions go. This could mean your friends, your favourite charities and even some relatives may get nothing.
Despite recent changes - principally the The Civil Partnership Act (2004) (see link below) governing civil partnerships - UK inheritance law does not automatically recognise live-in partners either. The Act creates a new legal recognition for the first time - and bring with them a wide range of rights and responsibilities similar to marriage - to those couples that choose to register.
So even if you have lived together for years your partner may get nothing if you haven't made a will, unless your property was in joint names before you died or your partner goes to court.
And of course, there really is nothing scary about making a will. It simply puts you in charge and allows you to decide what happens to your property when you die. With a will - properly put together by a solicitor - you can be more confident that what you want to happen after your death actually takes place.
Citizens Advice Bureau
The best way to choose a solicitor is by personal recommendation. Ask your family, friends, neighbours or colleagues. Have they ever needed to use a solicitor and was he, or she, any good? If you still can't find one you can look in the Solicitors' Regional Directory at your local library or Citizens Advice Bureau (CAB). The directory lists all the solicitors in your area and describes the work they specialise in.
Having found a solicitor the next step is to ask how much he/she will charge. Don't be afraid to ask. Solicitors' prices for wills are very competitive and it will probably cost less than you think. In most cases it will cost you less than buying a TV licence.
Once you've made the appointment to see your solicitor, think about what exactly you have to leave and whom you would like to leave it to. Make a list beforehand and include things like insurance policies, premium bonds (although not transferable you still have to list them), any property you own as well as treasured possessions. If you have young children or pets, think about who you would like to care for them in the event of your death.
Once you've outlined your wishes to your solicitor, he/she will draw up your will. You will then be asked to check over it to make sure your wishes have been correctly expressed.
Executor
Your solicitor will also ask you to choose who you want to be an executor. This is the person who will actually carry out your wishes after your death. The executor or executors - you can have more than one - can be beneficiary of your will. Most people choose their grown-up children or a close friend of the family. If you don't know anyone suitable you can always ask your solicitor to be your executor.
To make your will legally binding, two people - who cannot benefit from your will - will have to witness it. You don't have to worry about finding witnesses, as your solicitor will usually ask two people from the firm.
Once you are happy with your will, your solicitor will give you a copy and, if you wish, keep the original for you free of charge. But don't forget, once you have made your will, this doesn't mean you can't change it afterwards. Indeed, it is advisable to update your will at least every three to five years, or sooner if your circumstances have changed - for example, if you get married, divorced or move house or have children.
Thinking about death is never easy, but if you care about your family and friends, making a will really is the sensible thing to do. So put yourself in charge and go and see a solicitor.
You Don't Have to be Rich to Make a Will
Making a will is not just for the well-off who want to pass on expensive property such as a big house or valuable family heirlooms.
Making a will is just as much about the small, but precious things in life. But if you don't make a will, you'll have no control over where these things go - the State will decide who gets what when you die. This means your friends, your favourite charities and some of your relatives may get nothing.
Mrs Walker is one person who is determined not to let that happen. As the daughter of one of the few survivors of the Titanic disaster, she has made a will that pays tribute to the people who saved her mother's life. The ‘unsinkable’ Titanic hit an iceberg and began to sink on its maiden voyage to New York on 14 April 1912. Only 704 passengers and crew out of the 2,547 who set sail, survived. Mrs Walker was conceived on the Titanic. Were it not for the rescue boats, she knows that she would not have been around into the next millennium.
As she lives in a rented house, Mrs Walker was not sure whether it was worth making a will, until she realised that the State would deal with the rest of her possessions when she died. Now, under the terms of her will, the Royal National Lifeboat Institution (RNLI) will benefit from the proceeds of a sale of her belongings. "I owe my life to a lifeboat, so I'm happy to know that I will be paying a debt of honour to the RNLI," Mrs Walker said.
There are many advantages of going to a solicitor when you make your will. You can ask for advice on your choice of executors, for example, and be sure that your will meets all the legal requirements for it to be valid. Safe storage of your will can be arranged too. And if the value of your possessions is high enough to attract Inheritance Tax your solicitor will discuss ways of distributing your property to lessen your tax burden.
Most importantly, a solicitor will make sure that the people and charities you want to benefit from your will get what you want them to get.
Will Stories
A will that has been properly prepared by a solicitor is an important part of sensible planning for the future. It's easier than you think and doesn't cost the earth. In most cases it will be less than the cost of a TV licence.
Choose a solicitor you know or someone personally recommended to you. You can look in the telephone directory or in the Law Society's Regional Directory in your local library or Citizens' Advice Bureau. And remember, price is not the only consideration. Choose a solicitor who is approachable and whose advice you feel you understand.
Wouldn't you like to make sure that the most important people in your life have something to remember you by?
Don't Risk DIY
There's nothing to making a will, is there? All you do is buy one of those DIY will packs you see in the shops, fill in the blanks, sign it and put it in a drawer, and then forget all about it.
But, you'd be wrong. A will is a legal document and it has to meet all the requirements laid down in law for it to be valid. A will should deal with all the belongings that you have at the time of your death and include alternative gifts that can be made if, say, someone you had intended to benefit dies before you or you die when your children are very young and have extra needs.
Families and friends are faced with heartache and misery as they come to terms with the fact that their loved one's will is invalid. It is essential that the wording used in the will is clear and expresses exactly what you want to happen. In death there will be no chance of double-checking what you had in mind.
Life Interest
Take Ken's home-made will as an example. He thinks there's nothing complicated about making his will - no need for a solicitor. He wants to leave everything to his wife Lynne and Ken is sure that when she dies she would want to pass his possessions on to their two children. So in his will, Ken simply says "I give everything I have to my wife Lynne for her life and then to our children."
But this wording gives Lynne what is called a ‘life interest’ in the estate not the ‘absolute interest’ that Ken had intended. In effect, Ken has given Lynne only the use of his possessions while she is alive, but not the full ownership. So on her death everything will pass to the children, regardless of anything else that might happen after Ken's death.
Even if Lynne subsequently decides that one child needs more financial support than the other - remember the Lottery - she can't change the effect of Ken's will. It also means that Lynne may not be able to sell-off some of Ken's property if she needs extra cash, because she doesn't have full ownership.
The very simplest of home-made wills can go wrong. Putting your affairs in order is all part of sensible planning for the future. Even if you have a home-made will, you can still ask your solicitor to review the document. You might want to add a codicil - a legal extension to your will that can take into account any changes in your possessions or family circumstances. Now is the time to make sure that you can provide for the people you care for.
The Law Society recommends choosing a solicitor who is approachable as well as affordable. If you do not have a solicitor already, you can ask for a personal recommendation from a friend or look in the Yellow Pages under ‘Solicitors’. And the Law Society publishes a Regional Directory that can be found in local libraries and Citizens' Advice Bureaux.
Six reasons to see a solicitor when you make your will:
1. Do you know the provisions of the Administrations of Estates Act, the Trustee Act and the Inheritance Tax Act - just three of the Acts of Parliament affecting the laws of wills and probate? Probably not, and why should you? But you should if you are going to make a will.
2. You can ask your solicitor to explain the extra powers available to your executors and trustees that you might want to include in your will.
3. If you're likely to have any liability for Inheritance Tax, also known as death duties, are you sure that your will is tax efficient? A properly drawn up will can save Inheritance Tax, leaving more money for your family, friends and favourite charities. A solicitor can advise you on tax planning.
4. Have you followed all the legal requirements that make your will valid? Unless it is signed and witnessed in a very specific way, it will be worthless.
5. If there are no arrangements for the final distribution of the remainder of your estate after all the gifts in your will have been made, the will is said to have ‘partially failed’. The money left over will be distributed according to the legal ‘rules of intestacy’ rather than your own wishes. A solicitor will always make provision for all your estate, including the possessions that you don't yet know that you'll have.
6. The vast majority of disputes involving wills in the courts arise from home-made wills.
Preparing for Later Life – How a Solicitor Can Help
You may wish to prepare for the possibility that one day in the future, you may no longer be able to manage your own affairs - perhaps because of physical disability or mental frailty.
A solicitor will be able to advise you how to go about this, depending on your personal circumstances.
Can I ask someone else to take over my affairs?
If you decide that managing your own affairs is getting too much for you, you can appoint someone else to do it for you by making a power of attorney. This is a legal document that authorises another person (the attorney) to act on your behalf. It is advisable to make an enduring power of attorney (EPA), a special type of power of attorney that remains valid if you later become mentally incapable of managing your affairs.
An EPA enables you - while you are still mentally capable - to choose whom you would like to look after your property and financial affairs. You can appoint one or more attorneys, and you can give your attorney(s) general powers to manage all your affairs, or you can specify what your attorney(s) can or cannot do.
You can also choose whether you want your attorney to act jointly with you or take over while you are still capable, or only after you become mentally incapacitated. A solicitor can act as your attorney if you wish, or you can choose a friend or relative, or a combination of these.
If you become incapable, your attorney must register the power with the Public Trust Office, which is responsible for overseeing the affairs of people who cannot manage for themselves because of mental incapacity. You will be notified when this happens, so you will have a chance to object if you feel you are not yet ready to give up control.
It is best to ask a solicitor to help you draw up an EPA. While it is possible to do so yourself, there are special procedures to be followed and forms to fill in which must be completed, signed and witnessed. Everything must be done properly, otherwise the EPA may prove to be invalid.
Can my attorney make other decisions?
You can only delegate to your attorney the authority to make decisions about your property or financial affairs. Your attorney cannot make any personal decisions on your behalf, such as where you should live or whether or not to give consent to medical treatment.
Some people are worried about being given medical treatment that is unacceptable to them, or being kept alive through artificial means when they are no longer mentally capable of refusing or withdrawing consent to medical treatment.
It is possible to make an advance directive or statement, also known as a 'living will', setting out in advance what kind of medical treatment you wish or do not wish to receive - in case you subsequently become incapable of giving or refusing consent or of communicating that decision.
Capable
You must be mentally capable at the time of making the living will and not influenced by others. You must also understand the nature and effect of any treatment you wish to refuse, and have considered the actual situation in which treatment may be needed and the consequences of refusing it (for example that you may die as a result of refusing treatment).
So long as these conditions are clear, then doctors or other medical practitioners are obliged to comply with your wishes to refuse treatment, as set out in the living will. However, doctors cannot be required to give a particular form of treatment, unless they agree it is clinically necessary.
A solicitor should be able to prepare a living will in accordance with your personal wishes and requirements. It would also be wise for you to discuss this with your GP and with members of your family so they are aware that you have made a living will.
Living Together? Make a Will
If you're unmarried but living with someone, you really should consider making a will.
That is the message the Law Society is keen to get across to the ever-growing number of people who choose to live together rather than marry.
Imagine the situation - a couple have lived together for years, but aren't married. They both contribute to the running costs of their home, but it is owned by only one of them. To all intents and purposes they live as husband and wife. That is, until one of them dies - then the problems start.
This is because in the eyes of the law, a couple who are living together ‘as man and wife’ have none of the rights of an actual married couple - particularly when it comes to sorting out a deceased partner's belongings (or ‘estate’). Your partner is effectively treated like one of your friends rather than a family member.
If you have not made a will, the Government will in effect make one for you when you die. There are fixed rules which determine who gets what, if anything, from your property and possessions - which could mean your friends, your favourite charities and even some relatives get nothing. More importantly, the person you have been sharing your life with could end up with nothing, unless your property was in joint names before you died or he or she goes to court.
Intestacy Rules
When there is no will, the distribution of the deceased's estate is governed by complicated rules known as Intestacy Rules. These state that the estate will be passed on to the next of kin - or the closest relative - by-passing the surviving partner. In extreme cases, the next of kin could even enforce the sale of the property from under the feet of the surviving partner.
Long-running family disputes could also surface as people try to get their own back on the surviving partner by cutting them off leaving them with very little.
Fortunately, it may not be all doom and gloom. If the surviving partner was financially dependent on the deceased, or they had lived together for more than two years before the death, they can go to court to make a claim on the estate. This, however, involves complicated legal proceedings that could last many months before a decision is made. All this on top of the distress of having lost their partner.
Whichever way you look at it, when you consider what is at risk, things would be so much easier if both partners make a will. That way the couple put themselves in control and leave each other whatever they want - including the property and any other items they may have bought together. For less than a cost of a TV licence, they could have the complete peace of mind a will brings.
So the message to couples living together is that if you don't want to worry, or leave your partner in a potentially difficult and distressing situation, see a solicitor and make a will. See a solicitor. Make a date before it really gets too late.
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