Samuel Phillips Law on why we should all make a Will, even if we’re single
Solicitor Felicity Nelson from HLN’s Expert in Residence, Samuel Phillips Law, breaks down the myths around Powers of Attorney, what happens if we never make a Will and what probate actually is...
Why should we be thinking about making a Will in our 20s and 30s?
In your 20s and 30s, you may buy your first home, get married or have children. These are some of the biggest decisions you’ll ever make and some of the biggest life changes you’ll ever go through. Unfortunately, no-one knows what is around the corner and you must ensure that your loved ones are protected in the event of your death.
For example, if you’re married and have young children, a Will can appoint guardians to bring up your children in the event of both yours and your partner’s death, as well as trustees to look after your money and use it for your children’s benefit until they reach an appropriate age (again, determined by you) to handle the inheritance themselves.
What happens if you don’t ever make a Will?
If you die without making a Will, the law dictates who will receive all your estate – that is everything you have, including money, property and personal belongings. You may not think you have a lot to leave, but you’d be surprised if you really thought about it. Belongings also have sentimental value and it’s important that you leave these to the right people.
A Will also appoints someone or some people to be responsible for administering your estate – that’s all the paperwork and ‘admin’. If you die without leaving a Will, the law again dictates who takes on this role of being your ‘personal representative’. Acting as a personal representative is a huge responsibility and that individual is personally responsible for making sure the estate is dealt with properly. It’s therefore often more appropriate for an independent person – e.g., a solicitor – to be appointed in a Will to take on this role, as family and friends may not feel able to take on that responsibility when dealing with the grief of a loss.
Should you still make a Will if you’re single?
Everyone should have a Will, irrespective of relationship status. A Will is individual to you and, whilst mirror Wills can be made for partners or spouses, etc., your Will is still personalised to your circumstances and wishes.
Felicity, you have a background in Conveyancing – why is it particularly important to make a Will if you’re a homeowner?
For most people, your home is your main asset and will be the biggest investment you ever make. It’s therefore vital that this is inherited by the people you wish in the event of your death. The only way to guarantee this is by making a Will.
If you own property with other people, it’s critical that you review and understand the type of joint ownership you have in place and what this means in the event of one owner’s death. You must also consider other people you may live with, who are not co-owners. Making a Will can ensure that any person you live with can remain in their home notwithstanding your death – whether that be permanently or for a period of time to allow them to find alternative accommodation.
Can you break down what Power of Attorney means and why we’d need one?
A Power of Attorney is a document that appoints someone or some people to make decisions for you if you’re unable to do so yourself. Lasting Powers of Attorney are the most useful powers of attorney to have and there are two types: one covering health decisions and one covering financial decisions. If you do not have Lasting Powers of Attorney in place, no other person has legal authority to make health or financial decisions for you – not even spouses. And that includes making decisions about joint assets and accounts!
Health decisions can only be made by your attorneys if you lose the mental capacity to make them yourself. Your financial decisions can, however, also be made whilst you still have mental capacity, if you would like some assistance. For example, people shielding during the COVID-19 pandemic were able to ask relatives who weren’t shielding to pay bills for them, go to the bank for them and use their bank cards, etc.
What is probate?
When people refer to an estate having to ‘go to probate’, they’re referring to the personal representatives having to apply to the Probate Registry for a Grant of Probate – to release or cash-in assets in the estate.
A Grant of Probate is a court order – a piece of paper – which formalises the personal representative’s appointment to deal with the administration of an estate. Whether or not this is required depends on the type and value of assets in the estate.
Do you always have to apply for probate through a solicitor?
You can apply for a Grant of Probate yourself, but it’s not recommended. In order to apply for a Grant of Probate, an inheritance tax return has to be made (even if there is no tax to pay) and various other forms need to be completed. These should be completed by a professional to ensure they are accurate. If forms are not correct, the Probate Registry may reject them, putting you back to square one. There is a fee payable to the Probate Registry for obtaining a Grant of Probate, and this fee is lower if an application is made via a solicitor.
Dealing with an estate in general is something you can do without having to instruct a solicitor. However, there are a lot of important considerations, not least regarding tax affairs. So it’s always advisable that you instruct a solicitor to assist you, so that we can ensure that everything is done correctly and thoroughly. Be reminded that the personal representatives are personally liable for ensuring the estate is dealt with properly, so it is in their best interests to instruct a professional.
What’s something you wish more people knew about Wills, probate and trusts?
How simple and straightforward it is to make your Will and Lasting Powers of Attorney. Our solicitors aren’t scary, intimidating, patronising or any of those other misconceptions!
If you’re considering making a Will, appointing a Lasting Power of Attorney or need help making sense of Probate, Samuel Phillips can offer initial advice in the strictest of confidence. To find out more, visit their website or Facebook page or call the firm on 0191 232 8451.