My Fortress

It is of vital importance that you make the correct decisions when choosing your attorney(s), deciding how they should act, and deciding which powers to give them…

• If you haven’t had a Will prepared before
• If you are not married and wish your partner to inherit
• If you have not updated your Will since marriage
• If your financial situation has changed
• If you have stepchildren

A Lasting Power of Attorney is a vital legal document that everyone should have in place in case the worst should happen, and you can’t make important decisions for yourself. If an LPA is not in place by this time, it can be a long and expensive court process through “Deputyship” to get the help you need, without the guarantee that the person that you wish is nominated. A well written LPA guarantees that your affairs are in order so that should the worst happen, you are prepared and protected.

There are many ways a will can fail:

Attestation (signing) issues- If the will isn’t signed and witnessed correctly, it can fail.

The original Will is lost or damaged- Copies of the original are not acceptable in their place.

The testator lacked capacity- If the subject of the will did not have the mental capacity to make the Will, it is invalid.

The Testator was under undue influence- If the subject of the Will was not acting freely in writing the Will, it is invalid.

Some parts of a Will may fail where others are valid, in this case (partial intestacy) the gifts that are valid succeed, and those that are not fail.

It is important that you get the drafting of your Will right, having professional help from My Fortress’ professional Will writers can give you peace of mind that your wishes are reflected completely and legally in your Will.

Avoid intestacy: Make it easier on your surviving relatives by making a valid will. Intestacy may also come with expensive lawyer’s fees.

Avoid family conflict: Remove any ambiguity as to your wishes and avoid the potential for arguments among beneficiaries.

Choose who will (and who won’t) inherit: Give specific gifts to your loved ones, and even choose to leave people out, who may stand to inherit if you do not make a valid Will.

Guardianship: Nominate trusted friends or relatives to look after your children.

Funeral wishes: Make your funeral wishes clear to your family so that you have peace of mind that your preferences are written down and unambiguous.

Estate planning: A valid Will can be drafted in a way to minimise the estate’s liability to Inheritance tax, as well as being efficient for beneficiaries.

The standard rate of IHT is 40% over anything in your estate over the ‘Nil Rate Band’ of £325,000. There are numerous other allowances that may be relevant in your circumstances (for example if you own a house). It is also important to note that gifts to spouses are usually exempt from inheritance tax.

You must know how your property is owned: either solely or as a ‘Joint Tenancy’ or ‘Tenants in Common’. If it is as a joint tenancy, the ownership of the property will pass to the other joint owner(s) and isn’t disposed with by your Will.

If you own the home as ‘Tenants in Common’ then your Will can be used to gift your home to any of your beneficiaries or leave it to form part of your residuary estate to be left in shares between multiple beneficiaries. You can also leave a property on trust, so that a beneficiary can live in it for a set period, before it is released to its final beneficiary (remaindermen) to own.

There are two types of LPA: A health and Welfare LPA and a Property and Financial Affairs LPA.

A Health and Welfare LPA appoints one attorney or more to help make medical and care decisions. This could be which treatments to consent to, or which assisted living facility to live in. This LPA only comes into effect after it is registered with the Office of the Public Guardian (OPG) and the Donor has lost mental capacity

A Property and Financial Affairs LPA appoints one or more attorney to help with financial matters and help manage your finances. This LPA only comes into effect once it is registered with the OPG, though the donor has the choice in drafting whether they wish to have the LPA active as soon as it is registered, or only if the donor has lost capacity.

If you own the home as ‘Tenants in Common’ then your Will can be used to gift your home to any of your beneficiaries or leave it to form part of your residuary estate to be left in shares between multiple beneficiaries. You can also leave a property on trust, so that a beneficiary can live in it for a set period, before it is released to its final beneficiary (remaindermen) to own.

An LPA can only be registered if the Donor (the subject of the LPA) has the mental capacity to do so. If you wait until it is too late, the LPA will not be able to be registered by the Office of the Public Guardian. In this case, a Deputyship order may have to be requested from the courts, a much longer and often considerably more expensive process.

Another reason is that the waiting times for registration are quite long, with some reporting up to 20 weeks wait for confirmation that their LPA has been registered. Its best to get your affairs in order in good time to ensure that you can rely on the help of your chosen Attorneys when you need it.