WILLS AND ENDURING POWERS OF ATTORNEY
All adults of sound disposing mind should make their will and indeed execute an enduring power of attorney. Making your Will is not something that should be done at the last minute or only by elderly people. It is something that should be thought about and planned for and should be considered by all age groups. It is also a fallacy to think that because a person does not have significant asset wealth, somehow a will is less necessary. A will is relevant to every person who has responsibilities as well as assets. Making a Will is especially important for couples with young children.
You should also review your will regularly as your life circumstances change, make a new will in accordance with your current circumstances. Every Budget introduces a new Finance Act, which brings tax changes and you should review your will each year in light of those tax changes.
Enduring Powers of Attorney
An Enduring Power of Attorney is a legal document which allows you to choose a specific person or persons to look after your affairs in the event that you lose your mental capacity in the future for any reason.
If a person loses mental capacity and has not executed an EPA, then their assets are effectively frozen. If family members need to realise assets to finance care etc. then a ward of court application may have to made which is a drawn out and costly affair.
The EPA has to be signed by the Donor (the person making the EPA) and the Attorney or attornies (the person or persons who is being appointed to act if the Donor become mentally incapable). The Donor’s doctor also has to certify on the document that ther Donor has mental capacity at the time the EPA is executed and the Donor’s solicitor has to execute the EPA also to confirm that the EPA has been explained fully and that the Donor understands it. Best practice is that all parties sign the EPA on the same day.
Notice of execution of the EPA has to be served on two parties
The EPA only comes into effect when it is registered with the Registrar of the Wards of Court. Registration will only take place when the Donor’s doctor has certified that the Donor no longer has mental capacity.
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What is a Will?A Will is a document in which a person sets out their wishes in relation to certain matters which are to take effect on their death.
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What property can be disposed of by Will?All property to which a person is beneficially entitled but usually not including joint property which passed by survivorship except in circumstances where the joint property reverts to the deceased estate under a resulting trust.
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When does a will take effect?The will does not take effect until the death of the testator. The testator is free to deal with property during his lifetime even though it is dealt with in the will. It just means that any reference to the property in the will becomes redundant. It is not the case that if a person leaves property to another in their will, that they cannot then sell or transfer the property during their lifetime.
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Why make a Will?1. Control - It allows you to decide on how your property is to be distributed after your death and it is not left up to the State under the laws of intestacy to decide on your behalf. 2. It also allows you to decide who is to handle your affairs after your death by appointing an executor 3. Tax planning – it allows you to ensure that your estate is administered in the most tax efficient way possible. 4. It allows you to set up trusts to look after children with special needs or vulnerabilities and to appoint people whom you trust to act as trustees 5. It allows you to appoint testamentary guardians to look after children who are under 18.
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Who can make a Will?Anyone who is over 18 (unless they have children) and who has capacity.
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What are the requirements for a valid will?It has to be in writing. It has to be signed at the end by the testator and the testator’s signature must be witnessed by two persons who must sign their name in the presence of the testator but not necessarily in the presence of each other.