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Wills, Probate and Estate Planning; frequently asked questions

Written by: Keoghs Solicitors

Date: 17th January 2013

At Keoghs, Nicholls, Lindsell and Harris, our team are on hand to answer questions on all aspects of Wills and Probate as well as Estate Planning. Here are our currently most frequently asked questions:

  1. What is a Lasting Power of Attorney?

A Lasting Power of Attorney is created, to enable someone to act upon the behalf of someone else (the Donor).  There are two types of Lasting Power of Attorney:

The first  (and most common type) refers to the Property and Financial Affairs of the Donor. This allows the Donor to appoint a legally authorised person to look after their property and financial affairs should they become mentally incapable of doing so themselves such as when the Donor is suffering from Alzheimers or Dementia. Alternatively, the Donor may have decided they no longer wish to deal with their affairs themselves, though still have the mental capacity to do so. For example, the Donor might feel that old age makes dealing with such affairs a strain on their life, despite being fully capable, mentally, of doing so.

The second (less common type) is for the Health and Welfare of the Donor. This allows the Attorney to make medical decisions on behalf of the Donor. If the Donor went into a coma, a doctor would consult the Attorney to make the medical decisions that were required. This is less common because doctors generally consult family members when tough, medical decisions need to be made. Lasting Power of Attorney for Health and Welfare are popular when the Donor feels their family is broken down and that one family member may object during times where fast choices need to be made.

Lasting Power of Attorney, for both types, must be registered to be effective.

  1. I need to make a Will but what are the key benefits to myself, my family and loved ones?

Making a Will is the only certain way of ensuring that your spouse, partner or loved ones inherits what you would like them to inherit. If you die without having made a Will, you are known as dying ‘intestate’. If you die intestate, the current intestacy rules would apply and make no account of your wishes.

Dying without having made a Will may mean that your spouse has to share your estate with your relatives, whom you may not have intended to benefit from your estate. This is particularly important when co-habiting as a couple.

At present, the intestacy rules do not recognise co-habitees or ‘common law’ couples, so if you die intestate, then your partner would not automatically inherit any of your estate. Your estate would pass to your surviving family i.e. children, parents or siblings and your partner would have to make a claim on the estate, probably claiming financial dependence. However, if you have children with your partner, then your children would automatically inherit the estate as your next of kin. Your partner could get separate legal representation in order to secure a share of your estate, but this is expensive and something that you may want to avoid.

By having a Will in place, you ensure that your wishes are undertaken, and that your partner and children are provided for.

  1. Who can ‘witness’ my Will?

A witness must be over 18 years of age and of sound mind. However, a witness must not be named as a beneficiary in your Will, or married to a beneficiary. For example, if your daughter or daughters husband has signed as a witness, and if either were named as a beneficiary of your Will, then they cannot receive their inheritance.

  1. I already have a Will but how often should I have it reviewed?

Once you have a Will drafted and witnessed, we would recommend that this is reviewed at least every 5 years or after any major life change. By major life change, we mean separating from your husband or wife, getting married or getting divorced, having children or moving house. Changes can be made by ‘codicil’, which is an addition, supplement or amendment to an existing Will, although on some occasions we may recommend making a new Will.

We hope that these FAQs have proved of interest to you. Don’t forget to come back again soon, for an updated listed of frequently asked questions and answers from our Wills, Probate and Estate Planning team.

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