By Masayo Crumbie – Chartered Legal Executive FCILEX at Parfitt Cresswell

I can understand why so many people prefer not to think about the prospect of their own death, or becoming too ill to make their own decisions, but avoiding it causes huge distress to grieving relatives. It is heartbreaking to see and challenging to manage the resulting issues. If you don’t want your family suffering, like some of those who come through our door, it’s time to face the worst and look at Will preparation and Lasting Powers of Attorney.

It is tempting to go for the cheapest option. In the UK, there are many unregulated Will Writers selling Wills and Powers of Attorney, but these are often found not meeting the wishes. It is therefore important that yours are fit for purpose. Below are some of the key considerations to ensure you get it right.

Wills – Why Bother
A Will ensures that your affairs are in order and that your loved ones are provided for. It means you get to control who benefits from your estate. Without a Will, that decision will be made by a law known as the intestacy rules. Those rules typically don’t match the wishes of the deceased. In many cases, the amount passed to the surviving spouse is inadequate and can cause real hardship.

In your Will you should consider including provision for children and pets (if you have any) and you can advise on your wishes for your funeral, which can prevent arguments.

Legal costs to resolve disputes, caused by not having a Will, can quickly escalate.

Inheritance Tax – Estate Planning
You should check if your estate is liable for inheritance tax (your lawyer can advise). You may also be entitled to Residence Nil Rate Band but this may involve careful estate planning. In addition, things like gift giving and life insurance policies, can impact your inheritance tax, if not handled appropriately. Have you nominated a beneficiary in your Pension Death Benefit or is it payable to your estate? This could also have an impact on our Inheritance Tax liability.

Why use a Solicitor to write a Will?
Homemade Wills, including ‘off-the-shelf’ Will packs available in shops and online can easily be made invalid. Important details may be left out, certain wording used may result in undesired outcomes or its execution may not conform to the required legal formalities.

In 2011 the Society of Trust and Estate Practitioners (STEP) published a report on the threat posed to the consumer from some unregulated Will Writers, outlining the following main threats:

  • Invalid Wills
  • Will Writers making untrue claims
  • Disappearing Wills and Will Writing companies

The Legal Ombudsman has also since published a report criticising the poor service provided by many Will Writers, and also drawing attention to the fact that unsatisfied customers of unregulated Will Writers have very little recourse.

Using a lawyer will prevent unnecessary difficulties and expenses. A good lawyer will give you a personal service and:

  • Ensure that your Will is worded correctly to give effect to your wishes
  • Give inheritance tax planning advice
  • Consider the legal issues and advise you accordingly
  • Advise you regarding guardianship in respect of your minor children
  • Give expert advice regarding property ownership and different effects it will have on your Will.

Over the years, we have seen certain types of Will Trusts being sold on the basis that they work to ‘protect your home’. However, without suitable and careful legal advice about rules surrounding these issues, these Will Trusts may be worthless or potentially lead to increased expenses and taxes.

There are circumstances where these types of Will Trusts are appropriate and can work to protect your assets. However, it is important to ensure that your legal adviser has assessed suitability of such Will Trusts in your particular circumstances and have provided you with the relevant advice so that you can make an informed decision.

What is a Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document where you give one or more persons (the Attorneys) authority to make certain decisions on your behalf. Anyone with people depending on them, such as employers and parents, should have LPAs in place, they are not just for the old and sick. If you are unexpectedly incapacitated, and that can happen to anyone at any age, the LPA limits unnecessary hardship.

There are two types of Lasting Powers of Attorney:

  • Property and Financial Affairs
  • Health and Welfare

Property and Finance LPA
This gives your Attorneys authority to make decisions relating to your property and financial affairs and can include a power to sell your property on your behalf.

Health and Welfare LPA
This gives your Attorneys authority make decisions relating to your health and welfare on your behalf BUT ONLY when you lack mental capacity to make your own decisions. This can include decisions about your health care, medical treatment, where you live and day to day decisions about your personal welfare such as diet, dress and daily routine. There is also provision to grant your Attorneys authority to give or refuse consent to life sustaining treatment.

Your lawyer can advise you on:

  • Who can be Attorneys and what you should consider when choosing your Attorneys
  • What restrictions, instructions and guidelines you can set out in your Lasting Powers of Attorney
  • Who you should consider notifying
  • Who can act as the Certificate Provider
  • When your Attorneys can start to act
  • What happens if you do not have a Power of Attorney in place
  • If your existing Enduring Power of Attorney can still be used

According to a published data, almost 130,000 Lasting Power of Attorney applications have been rejected over the last five years and almost 30,000 applications were rejected in 2022-23 alone due the applications containing mistakes. As with Wills it is important to employ an adviser who is professionally qualified to give you the service you and your loved ones need.

I’m sorry if this has got you worried. To help you, Parfitt Cresswell is offering a Complimentary Initial Consultation with a member of our legal team. You can call us today on 0800 999 4437. But even if you don’t call us, I urge you to get in touch with a lawyer as soon as you can.