Wills & LPAs – What are they and why do you need them?

16 November 2022
Sarah Gill, Solicitor

Wills & LPAs – What are they and why do you need them?

Wills and LPAs; what are the differences, what does each document cover and who should have them in place? In this article Senior Paralegal Sarah Gill TEP provides an overview on these two essential legal documents.

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What are Wills?
A Will is a legal document which sets out how you would like your property, finances and other affairs to be distributed upon your death. Having a Will is the only way to ensure that these issues will be dealt with in-line with your wishes.

But what if I have nothing to leave
It is a common misunderstanding that you need to be wealthy to need a Will. This is not the case. Many people own their own house or have life assurance policies, investments, building society accounts and shares. Those assets alone could be worth very large sums of money.

Everything will go to my nearest relative anyway
Many people assume that if they die, their partner will automatically receive everything. There is nothing automatic about it at all and if you are not married, this is definitely not the case. A Will is essential. This can be a complicated area of law, a Will provides certainty and helps to prevent claims against your estate.

Who should make a Will
A Will is something that everyone should have; yet only about a third of people do. We spend most of our lives working to provide for our loved ones and a Will is essential to ensure that your assets are distributed to those loved ones in the most efficient and legally binding way possible. Everyone should have a Will, but it is even more important when you have a partner, children, grandchildren, or if you own property.

What happens if I die with no Will in place?
If you die without making a will it is called “dying intestate”. The UK intestacy rules are very rigid and present a number of difficulties. Couples who are not married or in a civil partnership do not inherit under the intestacy rules, with blood relatives inheriting in a strict order. In addition, the Inheritance Tax (IHT) burden for people who die without leaving a Will can often be higher leaving loved ones with a large IHT bill which will reduce the value of your estate.

Case Study
Comedian Rik Mayall died in 2014 with no Will in place leaving his family with a large tax inheritance bill. This could have been prevented if he had put a will in place.

What are Lasting Powers OF Attorney (LPAs)?
LPAs are legal documents which give a person or persons, who are appointed by you, the power and authority to make decisions on your behalf during your lifetime when you are unable to do so. These appointed persons are called your Attorney(s). There are two types of LPA:

  1. A Property and Financial Affairs LPA,which gives your Attorney(s) authority to deal with your property and finances;
  2. A Health and Personal Welfare LPA which allows your Attorney(s) to make welfare and health care decisions on your behalf. This could also extend, if you wish, to giving or refusing consent to life-sustaining treatment.

Choosing your Attorney(s)
You should choose people you trust completely who are over 18. People usually choose their spouse and often their children, and other relatives or close friends. An alternative is to choose a professional such as a solicitor.

Who should have LPAs
No one knows the future and anyone could lose mental capacity at anytime either through illness or injury, so in an ideal world we would all have LPAs. However, LPAs are essential if you are at a stage of life where you may need additional help or support, especially if you are considering support from a professional care provider.

What happens if I lose mental capacity with no LPAs in place?
If you lack capacity, then it will be necessary to make an application to the Court of Protection for a Deputyship Order. This can be a long, stressful and particularly costly process for your loved ones and there is no guarantee over who the Court would appoint as your Deputy.

Case Study
The husband of broadcaster Kate Garraway lost mental capacity with no LPA in place during the pandemic leaving her unable to refinance their mortgage, access accounts in his name, manage his care or even see his medical notes.

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Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

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