Nearly two thirds of UK adults don't have a will. Why? Research from Macmillan found that many simply "never got round to it".
Now, in light of the rapidly evolving coronavirus pandemic, the Government is regularly modifying general guidance in response. If making a Will has been on your to-do list for a while, do not delay any longer.
What is a will?
It is a legal document that sets out your instructions on who should deal with your estate following your death and who you want to benefit from your estate.
Who can make a will?
Anyone over 18 years old and of sound mind.
What if I do not have a will?
The intestacy rules decide who benefits from your estate. This can lead to undesirable results as your estate could go to people you would not have chosen.
The rules also set out who can handle your estate after death. This can lead to problems if the person is not suitable because of age, health, geographical location, or for any other reason.
For example, if you leave a surviving spouse your estate will not automatically pass to them.
For deaths without a will on or after 1 October 2014 where there is a surviving spouse - does the deceased have children or other descendants?
· No - the surviving spouse receives everything
· Yes - the surviving spouses receives all personal chattels, statutory legacy of £250,000, or for deaths on or after 6 February 2020, £270,000 free of tax, half of the remainder of the estate absolutely on statutory trusts; issue (or other descendants) receive the remaining half of the rest of the estate absolutely on statutory trusts.
But beware of inheritance tax. This is payable on your estate depending on how much you have and who you leave it to. If you make a will and leave everything to your husband, wife or civil partner, then anything left to them will be exempt from inheritance tax.
However, if you did not make a will and left a surviving spouse and issue (or other descendants) this could give rise to inheritance tax problems with tax being payable.
Remember also to protect your partner if you are unmarried. Cohabitees are not entitled to anything unless you have specifically provided for them in your will – it does not matter how long you have lived together. A cohabitant who was not the spouse or civil partner of an intestate has no entitlement under the intestacy rules. They may, however, be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
I have been delaying making my will or reviewing my will. I am now worried I have left it too late. Is it still possible in light of social distancing and now that many solicitors are working from home?
Many clients have been in contact sharing the same worries that they have not yet completed or even started making a will. Understandably, they wish to ensure their affairs are in order and any existing will is in line with their wishes and valid.
At Russell-Cooke our private client team is working remotely. We are still open for business and working hard to minimise disruptions to you.
We are able to continue face-to-face contact by meeting clients over Skype, WhatsApp or Facetime to take instructions. This enables us to provide clients with continuity and comfort in these worrying times.
If clients are unable to use these methods, we are able to continue to use the normal methods of communication such as email and telephone calls.
We are ensuring that all clients are contacted and offered arrangements that suit them best when putting in place their will.
When dealing with older clients, our priority is to protect their health and well-being but we also need to make sure we properly assess their capacity to put in place a will. You will appreciate the Government's guidelines are changing daily and we will do everything we can to keep on top of the changes.
What about witnessing the will?
For a will to be valid, the person signing needs to do so in the presence of two adult, unrelated witnesses. The witnesses must also sign the will in your presence and cannot be beneficiaries under the will.
This means that at least three people need to be in a room together when each person signs. This can understandably prove to be very challenging for many people and families under the current circumstances. This is especially true for those who have been advised to self-isolate to protect themselves and others from coronavirus such as the elderly who are over 70 years old or those with underlying health conditions.
I am really worried that I will get ill and need to go into hospital. Will my wishes regarding life sustaining treatment or end of life treatment be considered? Can I do anything about this?
We are continuing to make both types of Lasting Powers of Attorney (LPAs) for clients: Property and Financial Affairs; and Health and Welfare.
These enable clients to choose who they would like to make decisions for them in the event they can no longer do so with regard to managing their property and financial affairs, or ongoing general health and welfare decisions.
However, an LPA can only be used once it is registered by the Office of the Public Guardian. This can take up to between 8 to 12 weeks which may be a concern.
For clients who are concerned in the short-term they may wish to consider other options, especially if their health is an immediate worry.
Whilst waiting for a Health and Welfare LPA to be registered, some clients may wish to consider having an Advanced Directive (a living will) made. This is effective as soon as it is signed by the client. It can deal with wishes in relation to resuscitation and other matters.
It can only be used if you lose capacity and is more restrictive than a Health and Welfare LPA.
If you have any questions or wish to make a will or Lasting Power of Attorney please contact us.
What solution is there?
Stay in touch and watch this space. There could be some welcome good news for those of you who would like to make wills but feel they are unable to do so currently whilst self-isolating.
The problems with signing wills has been recognised by various professional bodies in the field such as The Law Society, the Society of Trust and Estate Practitioners and the Solicitors for the Elderly who are in discussions with the Government. It is proposed that the rules for creating and signing of wills in the current climate are relaxed to help all those involved. Clearly, this is a strong point of public interest and has been identified by many as a cause for concern.
In the meantime, the priority is for everyone to stay safe and well and to follow Government guidance. Stay in touch with us and we will be able to advise you how to sign your will safely whilst ensuring your will is valid, especially if the rules are relaxed in the near future.
If you are signing your will at home, we can guide you and provide clear instructions as to the process to ensure your will is legally effective and binding. If you are worried about doing this yourself, then please contact us as we would be more than happy to support you by guiding you through the process by Facetime, Skype or some means of video call to provide you further comfort and peace of mind.
Lastly and most importantly we hope everyone, both clients and contacts stay well and safe in these difficult times.