Wills

Wills for new parents : what you need to know.

Why do parents need a will? 

1. If you die without a will, a complex set of laws known as the intestacy rules come into effect. The intestacy rules are made for all those who have not made a will and unsurprisingly rarely reflect parent’s specific wishes.
2. It’s not all about money: most importantly, making a will allows you to appoint legal guardians for your children.
3. Not making a will could lead to uncertainty and financial worry for your family and dependents.

Making the will is the best way to ensure that your loved ones are taken care of and provided for as YOU wish. 

Writing the best will for your children — what to consider in five easy steps.

• Appoint a guardian for your children

A legal guardian is a person who takes care of your children in the event you and your partner die. It is important to consider legal guardianship.  If these plans aren’t outlined in a will, and both parents are deceased, the local authority or the courts will need to decide who should look after your children.  While immediate family are often preferred, the process is not automatic. You may also not wish for your children to be looked after by your immediate family in any event.  

NOTE: Choosing a godparent is not the same as choosing a guardian, as godparents have no legal rights. Guardianship will automatically end when your children reach the age of 18.

• Consider your child’s finances.

Unless the will says otherwise, the children will normally receive access to their assets at the age of 18. Many of our clients think that 18 is a bit too young an age to expect children to be financially responsible. With a will in place, they can set a higher age of inheritance such as 21 or even older.

NOTE: The assets will be held in trust and while the children will not be able to manage it personally, they will still be able to benefit from the inheritance.

• Appoint trustees for your child’s inheritance.

If you die before the age your children can inherit, their assets will need to be held in trust.

To manage that trust, you need to nominate people called trustees who, essentially, will stay in control of your children’s finances.

By having a will, you can nominate specific and trusted people to act as your trustees without having to rely on the “one size fits all” intestacy rules.

• Review beneficiaries from trusts, pensions or insurance.

If you have a life insurance policy, a pension scheme or other assets held in trust, these will not be passed down within your will.

If you want your children to inherit these financial products, you’ll need to contact each provider and nominate your children as your beneficiaries.

• Provide for your stepchildren or foster children.

If you have stepchildren or foster children, they will not automatically inherit from your estate unless you specifically include them in your will.*

• Bonus Point: schedule a will review

We advise reviewing your will at least every five years. This will allow you to step back and reflect whether people you’ve nominated to look after your children are still suitable, and whether your instructions still reflect your family’s situation. It is easy to change a will once you have one and at My Local Solicitor, we pride ourselves on building happy and strong relationship with our clients as we assist them in their life journey.

NOTE: circumstances can change at a blink of an eye and so it’s important to keep your will up to date to accommodate this. For example, if you marry or enter into a civil partnership, any existing will is automatically revoked. 

This article is for information purposes only and does not constitute legal advice. Why not book a free consultation with your local solicitor today? Call us on 01244 478 730 or email hello@my-local-solicitor.com

Who can witness my will?

What is a witness?

In order for a will to take effect, it must be correctly signed by the testator (the individual making the will) as well as two independent witnesses. Anyone over the age of 18 with mental capacity can witness a will, such as a neighbour, friend, GP, solicitor or members of staff at a bank. The witnesses must not be related to the individual or have any personal interest in the will itself. The role of a witness is to ensure that the same person who has written the will is also the one signing it.

Why are witnesses important?

 The main role of a witness is to confirm the identity of the individual who has created the will and to prevent fraud through false signature and coercion. Wills are a written expression of a person’s desires and therefore quite personal, by having the correct witnesses in place, this ensures that the will is valid and can be executed as intended by the individual.

Refusing to sign a will

There are situations where you can refuse to sign a will, these include (this is not a definitive list, so please use your own judgement when taking on such responsibility):

• If you feel the individual whose will you will witness does not have sufficient mental capacity e.g. dementia, brain injury, a disability or a mental illness;
• If you are named as a beneficiary of the will or are related to the individual, you should not sign as a witness,as this could cause disputes later on;
• If you believe the individual is being forced into creating the will; or
• The person signing the will is not the testator.

If you have any doubt as to the testator’s identity or ability, you should refuse to sign the will.

The consequences of incorrect witnessing

If a will is not executed correctly, it will become invalid and could lead to a previous will being considered (if there was one previously) or the intestacy rules would apply. These are a set of rules which govern how property (estate) is divided up if a person dies without leaving a valid will and can result in unfavourable outcomes in some cases. Therefore, it is important to seek legal advice if you are considering making a will or already have one but need it witnessed. Our experienced solicitors can guide you on the most appropriate way to witness your will, depending on your situation.

This article is for the information purposes only and does not constitute legal advice. For further information, please contact us via email at hello@my-local-solicitor.com or call us on 01244 478730.

Author: Mahum Fatima

What is the role of an Executor?

What is an Executor?

In short, Executors are people authorised by a Will to deal with a deceased’s estate.  They are also responsible for ensuring that the instructions set out in the Will are carried out.

This formal authority is obtained by “proving” the Will at the Probate Registry, which issues a grant of probate as evidence to everyone that the named Executors have the authority to administer the estate. 

When the grant of probate is issued, the deceased’s Will becomes a public document.

What are the main duties of the Executors?

The duties of the Executors are mostly to collect the estate, pay all debts outstanding at the date of death (including those arising during the administration of the estate) and to distribute the residue of the estate. 

An Executor should be a trusted and reasonable individual who is over the age of eighteen.

If there is no one that the person making the Will could or would like to appoint as an Executor,  then there is always an option to appoint a solicitor instead.  Solicitors will charge for this service but this would come out of the estate and is often seen as ‘money well spent.’

An increasingly popular, and often more affordable option,  is to name family members or friends as Executors and to appoint a solicitor to assist the Executors throughout the process.  This could be clarified in a Will and significantly lessen the burden of becoming an Executor while still holding onto the control over the estate.

What would be some of the other roles of an Executor? 

• Checking to see if there are any instructions regarding the funeral – this includes checking if there is a pre-paid plan or insurance to help pay for it as well as any specific requests about the funeral itself.
• Notify all of the relevant people such as insurance companies and banks of the date of death.
• Settling the deceased persons finances and paying any bills that are owed.
• Valuing the estate.
• After a valuation has been undertaken on the deceased’s estate, the executor will have to deal with paying Inheritance Tax (if applicable).
• Keep an account on what has needed to be spent and how everything has been administered to show that the Executors have administered the estate properly.

The above roles are only a handful of what Executors have to do, but it shows the level of responsibility Executors have and their role is not often an easy or straightforward task.

Can Executors also be beneficiaries?

Executors do not have to be beneficiaries of the Will, but they can be. Most clients like to leave a gift in their Wills  in order to show their gratitude and appreciation to the Executors for the work they had to carry out.

Here at My Local Solicitor, we are more than happy to discuss your particular circumstances and help you choose your perfect Executors and/or assist them with their role when required.

Photo by Ben White on Unsplash

Do I need a solicitor to draft a Lasting Power of Attorney?

There are various DIY kits out there which you may use to write an LPA, however, this is not always a straightforward process and there is a lot to consider. The Office of the Public Guardian estimates that around 15% of the forms they receive contain errors, some of these can go unchecked which can cause issues later on. By using a solicitor, you will have the assistance of a legal expert who can look after your best interests and add details which take care of unexpected circumstances.

Before deciding to write your own LPA, you may wish to consider the following:

1. How many attorneys are you appointing?
2. What happens if they cannot agree?
3. If you have property abroad, have you thought about how this would be managed?
4. Do you own your own business? In this case, a separate Business LPA is needed.
5. If an error goes undetected and the donor loses capacity, would the LPA still be valid?

The above points highlight the importance of getting a second opinion, as such matters are personal and can have major implications for someone. By having a LPA in place, you could save your family and friends from having to make difficult decisions concerning your health whilst giving you some peace of mind over your own matters. At My Local Solicitor, we do not have extortionate rates and do what is necessary to make this process as stress-free as possible. We offer a free, no-obligation consultation during which we are able to discuss your requirements.  In short, the answer to the question above is therefore: why risk it?

Do I need a Lasting Power of Attorney?

There is a common misconception that Lasting Power of Attorneys (LPAs) are specifically designed for the elderly, this is not the case. There may be instances where a person is unable to make their own decisions, examples of this include strokes, heart failure and in the case of meningitis, which is why a well written LPA  should not be underestimated. As they provide a significant amount of control to an individual, if written correctly and with professional guidance LPAs can ensure that they work in your best interest. It is also worth noting that an individual may lose mental capacity at any age, if this happens and there is nothing in place that stipulates how their affairs are to be arranged, they risk losing the freedom to express their wishes.

There are two types of LPAs which cover:

1. Health and care; and
2. Financial decisions

A health and care LPA can only come into force when an individual becomes mentally incapable of making a decision for themselves. This type of LPA covers issues relating to healthcare, treatment and living arrangements. If this is not communicated through an LPA, you could risk receiving treatment which you might not have wished for.

A financial decisions LPA allows you to delegate  responsibility of your finances and assets to someone else, this person is called the Attorney.

You can transfer power over matters such as:

• Receiving income and benefits
• Pension payouts
• Paying for your mortgage
• Managing your investments

To find out more, call us on 01244 478730 or email us with your details at hello@my-local-solicitor.com. You can find out more about LPAs here https://my-local-solicitor.com/lasting-powers-of-attorney/

Written by Mahum Fatima

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