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Discussing your mortality is not the easiest subject to bring up with friends, family and acquaintances. Consequently, many people pass away without leaving instructions, even though the benefits of writing a will are well documented. Aside from the potential legal complications, writing a will has numerous advantages. 

Control how your estate is distributed 

Many of us automatically assume that those we leave behind will understand how we would prefer our assets to be distributed upon our death. You may have already promised an individual a cash payment or assets but have not formally noted this on record. Unless there are specific instructions, in the event of your death, it is unlikely that your estate will be distributed how you would have wanted when alive.

As standard practice, many people will now review their will and inheritance tax situation at the same time as their investments, allowing adjustments and tweaks to be made along the way. 

Appoint an executor

You will often hear about the role of the executor of your estate and their control over the distribution of your assets. Typically, an executor will be somebody you trust, such as a close friend or a professional party, such as a solicitor. While they have a degree of flexibility regarding the distribution of your assets, and slight adjustments to your wishes, they will likely honour your instructions.

Appointing an executor allows you to maintain a degree of control, which can be lost if you have a will but no executor, or nor will at all. The situation can become complex when no executor is named or they cannot fulfil their duties for various reasons. Typically, one of the beneficiaries would step forward to take on the role with the support of others named in your will. However, if no agreement were reached, the courts would become involved and appoint a beneficiary as executor or an unconnected third party.

Avoid intestacy rules

The rules of intestacy relate to an individual who dies without leaving a will. There are statutory rules for this in England and Wales, although they differ in Scotland. Unless you leave a will, it is unlikely that your assets will be distributed as you might have hoped.

There are numerous issues to consider concerning intestacy:-

There are also additional rules and regulations regarding grandchildren, great-grandchildren, and other relatives. If there is no will and you have no surviving blood relatives, your entire estate will pass to the Crown.

Protecting an unmarried partner

It can be dangerous to assume anything regarding legal procedures, especially the distribution of your estate upon death. For example, an unmarried partner does not have the same legal rights to automatic inheritance as a married partner. Therefore, if you were to die without a will, there is every chance your unmarried/civil partner would not benefit to the extent you might have assumed. Consequently, it is crucial that you write a will which includes all beneficiaries and levels of inheritance.

We have seen situations where unmarried/civil partners have pursued court action concerning inheritance, but this can also be a legal minefield. To save any confusion, ensure that your partner is added to your will as a beneficiary.

Provide income for dependents

Many people provide income for dependents, but it is dangerous to assume that this will automatically continue upon death. If you wish to provide income for dependents after your death, this must be noted in your will. You may have investments that attract regular dividends or property assets with significant rental income. 

Whatever the situation, it is essential to protect the dependent and the origins of the income in question. Don't let your executor sell your real estate assets if that is where earmarked revenue comes from!

Make provisions for your children

Whether you have children, step-children, grandchildren or adopted children, you may choose to make individual provisions for each child. Where the child is a minor, it is common practice to appoint a trustee to protect their inheritance. Whether the child is given access to inherited funds at a certain age, or perhaps income and capital releases are staggered over a certain period, this is something you can define in your will.

If you have children from a previous relationship, discussing this with your current family is probably worthwhile, so there are no shocks or surprises when the will is read.

Specify guardians for your children

In a perfect world, your children would have flown the nest before your death, and the subject of guardianship will never arise. But, whether you have young children or children with specific long-term needs, it may be sensible to specify guardians. 

If guardians were required, immediate or distant family members would typically step up to the mark. However, we live in a day and age where people are spread across the country and worldwide. Consequently, it is important to take nothing for granted when considering the guardianship of your children in the event of your untimely demise.

Avoid arguments between friends and family

Unfortunately, whether through innocent discussions or promises made but not recorded, if you fail to leave a will, this will likely lead to arguments between family and friends. This has the potential to rip families apart, alienate and isolate long-term friends and has been known to result in legal action. When contemplating whether to write a will, consider how you would feel if your estate was dragged through the courts, friends and family fighting and legal expenses building.

These are potentially sizeable legal expenses which would/should have been part of your estate and ordinarily gone to your loved ones.

Safeguard the family home

Whether or not you have children, it is not uncommon for the family home to be held in the name of an individual, even if it is a mutual asset in practice. This could be for several reasons, for example, historical or tax purposes. Therefore, to safeguard the family home, specific instructions should be written into your will. Unless clear instructions are left, you may find that the family home is sold to cover a tax bill which is the last thing you wanted.

When writing your will, you should assume that you are starting with a blank canvas with no legal rights or obligations. Therefore, include all parties whom you wish to benefit from your estate and clearly define their entitlement.

Consider inheritance tax

While the inheritance tax liability on your distributable estate cannot be impacted by a will, creating a will should prompt a review of your potential liability. There are ways and means of reducing any tax liability, including using gift allowances, pensions and trusts. The government often tweaks inheritance tax regulations, therefore, seeking professional advice while structuring your will is strongly advisable.

Many automatically assume that those looking to manage their affairs regarding potential inheritance tax liabilities are doing something wrong. However, it is a perfectly valid consideration because it will ensure that the maximum amount of funds/assets is available for distribution amongst your beneficiaries. The more spent on tax liabilities, the less to distribute to your chosen beneficiaries.

Specify your funeral instructions

In the midst of grief, trying to put together a funeral service which you “would have wanted” can be challenging. For example, are there any particular friends you would have invited? Perhaps there are some that you would prefer not to attend your funeral?

Since death is difficult to discuss, some people are unaware of whether their partner would prefer to be cremated or buried. The subject of a religious or non-religious funeral can also be tricky. Then we have the wake and any private celebrations of your life. Many people who choose to live overseas in the final years of their life may prefer to be repatriated upon their death. On balance, it would be advantageous to leave clear instructions in your will clarifying your preferences.

Gifts to charitable organisations

Writing a will is the perfect opportunity to leave gifts to one or more charitable organisations. It may be that a charity has helped you in the past, or they may be close to your heart for some reason. However, unless you specify donations to charitable organisations in your will, it is doubtful that contributions would be paid voluntarily after your death.

There may also be various tax breaks associated with charitable gifts that will enhance any donations. But, again, these are issues you can discuss with your financial adviser/wealth manager when looking to structure your will.

Digital assets

In the modern era, individuals are more likely to own what are defined as "digital assets". These non-tangible assets are created, traded and stored in a digital format, possibly associated with cryptocurrency and blockchain investments. However, the valuation, transfer and disposal of such assets can be complex. Consequently, it is vital that your executors have access to your accounts as soon as possible to clarify the legal position and what needs to be done to sell or transfer the assets.

Remove historic beneficiaries

Most of this article has focused on the benefits of writing a will instead of regularly updating your will. Unfortunately, many people fail to update the beneficiaries of their estate, with funds often going to previous partners. This may be to the detriment of your partner/family at the time of your death. While there are occasions where wills can be challenged in court, there would need to be a strong reason for this to proceed. A failure to update the beneficiaries of your estate could be classed as "bad admin", and it may be difficult to find a legal reason to challenge this.

Depending on how previous relationships ended, parties can be amicable, with assets going to the "right" people. However, don't bank on it!

Make gifts of sentimental value

A will is a very personal document that allows you to leave specific amounts of cash or items for friends, family and close acquaintances. However, you may have verbally promised a particular item to a friend or family member but not included this in your will. Unfortunately, unless other parties were made aware of the verbal promise, your wishes are unlikely to be fulfilled.

The value of leaving a will

While it is impossible to cover all scenarios which may impact the distribution of your assets on death, we have covered a wide variety in this article. In essence, you need to include all beneficiaries in your will and the level of entitlement, whether this is all or part of your estate, taking nothing for granted. Where there is confusion, this will likely lead to disputes; where there are disputes, this will likely lead to legal action. A simple, clear, concise will can avoid this.

Here at Assured Private Wealth we have an array of expert advisors on hand to walk you through the challenges of writing your will. If you require further assistance, or have any questions, we would welcome the opportunity to speak with you.

When looking to manage your financial and personal affairs in life and death, it can look fairly complicated at first glance. You will hear numerous legal terms, registration of documents and different roles. It is essential to look at each of these issues in isolation and then bring them together to create a broader, more coherent picture.

Executors and lasting powers of attorney

Many people see executors and lasting powers of attorney as the same, one or more individuals appointed to look after your affairs. The situation is further complicated because the same person could be appointed to both roles. In reality, the role of an executor and a lasting power of attorney is very different. Nevertheless, as a means of protecting your finances and maintaining your personal affairs, both have an essential part to play.

Due to the often overarching power placed upon an executor and a lasting power of attorney, in specific circumstances, you must trust the individuals appointed to these roles.

Role of a lasting power of attorney

The role of a lasting power of attorney will end upon your death. As we touched on above, even though the lasting power of attorney and executor may be the same person, the arrangements are very different. The primary role of a lasting power of attorney is to manage your finances and/or personal affairs in life when you are incapacitated. This may be as a result of:-

There will be occasions when individuals do not feel comfortable making financial/personal decisions on their own and will hand over control to a lasting power of attorney. Interestingly, where you are deemed to have the mental capacity to make a decision, you can revoke a lasting power of attorney at any time. This must be done in writing in a statement known as a "deed of revocation".

Role of an executor

Under the terms of your will, you would appoint one or more executors to administer your affairs upon death. It is important to note that an executor, in this capacity, has no control over either your financial or personal matters in life. Their role would become "active" upon your death and their appointment as part of your will. Some of the more common roles of an executor include:-

In reality, the role played by an executor will depend upon the size and complexity of the deceased's estate. However, as a backup, it is sensible to appoint a substitute executor in case those first named cannot fulfil their legal obligations.

Managing your affairs while alive

Unlike the appointment of an executor for your estate, deemed active upon your death, the situation is different for a lasting power of attorney. You need to register the appointment of a power attorney before you are deemed unable to do so, whether by loss of mental capacity, accident, injury or illness. It is active as soon as the lasting power of attorney is officially registered with the Office of the Public Guardian. 

This means that the appointed individual can make decisions on your behalf from the registration date. As a consequence of the potential "dangers" of having dual control over your affairs, many people leave it as long as possible before registering a lasting power of attorney. The obvious downside is that if you were incapacitated in some way and deemed unable to make a decision, you would not be able to register the legal document. In this scenario, your direct family and/or connected parties must apply to the courts for the right to administer your affairs. This can be time-consuming and expensive!

For reference, there are two types of lasting power of attorney which relate to:-

In theory, you could register different people for each type of lasting power of attorney. However, in reality, most people will appoint the same person, incorporating both types of lasting power of attorney into one agreement. Upon death, it is essential to note that the role of a lasting power of attorney is terminated. They will only have an active part to play in the management of your estate if they are appointed an executor as part of your will.

Managing your estate in death

Managing your estate in death is more straightforward, with the executor appointed as part of your will. As we touched on above, this can be the same person(s) appointed to be a lasting power of attorney, but this is a separate legal arrangement. The role of the executor will begin upon your death with specific instructions, as part of your will, which they must carry out on your behalf.

If you die without a will, this is known as dying intestate and subject to a different set of rules. While subject to potential variation in different parts of the UK, your closest blood relatives would inherit your estate, which would be split on a predetermined basis. As your closest blood relatives may not necessarily be the ones you would have chosen to inherit your estate, a will and an executor appointment are crucial.

On the rare occasion that an executor refuses to carry out your written instructions, legal action can be taken by the beneficiaries. For example, they may refuse to carry out your instructions because of non-payment of fees or allowable expenses - the courts would resolve this matter.

Should I appoint an executor and lasting power of attorney?

At the very least, it is important to appoint an executor to your estate as part of your written will. As we grow older, we become susceptible to various illnesses and different stages of mental incapacitation, which is where a lasting power of attorney can prove invaluable. Therefore, it is important to appreciate the role of a lasting power of attorney in life and an executor on your death. 

As the role of the lasting power of attorney ends as the executor's role begins, this ensures you have a degree of protection in life and death. Failure to appoint individuals to these roles could lead to significant expenditure and court time for family and friends. Nobody wants to see individuals fighting over your estate!

Summary

While understandable to a certain degree, many people need clarification on the role of a lasting power of attorney with that of an executor of your estate. Neither role will be active simultaneously, with the lasting power of attorney offering protection in life and the executor appointment protecting your estate and ensuring your instructions are carried out in death. Therefore, it is essential to take professional advice when deciding which individuals to appoint to the various roles and the appropriate production/registration of legal documentation.

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