What Happens if You Don’t Make a Will?

Everything you leave when you die, less anything you owe, is called your ‘estate’. A will sets out what is to happen to your estate. It is a legal document which, although it can be changed after your death in some circumstances, will normally be followed as written.

Dying Without a Will (Called Dying Intestate) Can Cause Unnecessary Hardship for Your Survivors:

• Delays would be incurred in trying to find out whether or not you did in fact leave a will, and in tracing your possessions.
• Delays would occur in the necessary formalities required before your estate can be distributed.
• Your next of kin will usually be appointed to sort out your estate, and he or she might not be the best person to do the job.
• The law dictates who will inherit your estate and in what proportions depending on whether you were married and/or have any children or grandchildren.

The Rules Do Not Recognise Unmarried Partners (Although a Partner May Be Able to Make a Claim on Your Estate):

• The law may require legally binding trusts to be set up. these may be unnecessarily restrictive and expensive, especially where only small sums are involved.
• There may be inheritance tax on the estate which could have been avoided.

Another very important reason for making a will is so that you can decide who you want to look after your children if you have a young family.

If you do not make a will, your possessions will not necessarily be passed on in the way you would choose. This is a particular risk if you live with an unmarried partner.
(Inheritance Provision for Family and Dependants) Act 1975.

Managing Your Affairs and Lasting Power of Attorney
There may come a time when, because you are incapable of managing your property and financial affairs or personal welfare, you will need someone to do this for you.

You can formally appoint a friend, relative or professional to hold a lasting power of attorney that will allow them to act on your behalf. Lasting power of attorney (LPA) in England and Wales has no legal standing until it is registered with the Office of the Public Guardian. A lasting power of attorney is a legal document that lets you appoint someone you trust as an ‘attorney’ to make decisions on your behalf.

It can be drawn up at any time while you have capacity, but has no legal standing until it is registered with the Office of the Public Guardian. A registered LPA can, unless the document states differently, be used at any time, whether you have the mental ability to act for yourself or not. You can create two types of LPA:

• Property and affairs
• Personal welfare

Property and Affairs LPA: A Property and Affairs LPA allows you to choose someone to make decisions about how to spend your money and the way your property and affairs are managed.

Personal Welfare LPA: A Personal Welfare LPA allows you to choose someone to make decisions about your healthcare and welfare. This includes decisions to refuse or consent to treatment on your behalf and deciding where you live. These decisions can only be taken on your behalf when the LPA is registered and you lack the capacity to make the decisions yourself.

How Many People Should You Appoint and Whom?
You may not be able to check up on the attorney yourself if you become incapable, so it may be a good idea to appoint more than one person to help prevent abuse of the responsibility. Choose people you can trust to act in your best interests. You should consider how well they look after their own financial affairs and whether you can trust them to use your money to meet your needs.

Depending on the complexity of your property and financial affairs it may be a good idea to get advice from a solicitor before making an LPA.

You can get further advice from the Office of the Public Guardian about making an LPA.

Registering an LPA
Either you or your attorney can apply to the Public Guardian to register your LPA. The application can be made at any time after you have made an LPA. Before the application to register the LPA is made, the people named as being entitled to receive notification of the application must be told by the person who wants to register it.

The Public Guardian will give notice that the application has been received to:

• You as the donor
• The attorney or attorneys

Your relatives will not be notified of the application to register the LPA unless you have named them as being persons who should be given notice. Anyone who has been notified can object to the LPA being registered.

Once the LPA is registered it continues indefinitely. The LPA can be registered by the attorney after you have lost capacity.

Lasting power of attorney replaced the enduring power of attorney (EPA) on 1 October 2007. A person given power under an EPA before 1 October 2007 can still use it and apply to have it registered. This person has a duty to apply to register the EPA as soon as they believe that you are becoming or have become mentally incapable of making financial decisions for yourself.

If you have an unregistered EPA and still have the capacity to make decisions for yourself, you can make a Personal Welfare LPA to run alongside it.

Lasting Power of Attorney (LPA)
You can cancel your LPA if you have the mental capacity to do so. If there is a dispute about whether your LPA has been cancelled, the Court of Protection has the authority to make a decision.

A Property and Affairs LPA is revoked if you or your attorney becomes bankrupt; bankruptcy does not terminate a Personal Welfare LPA.

Enduring Power of Attorney (EPA)
You can cancel an unregistered EPA if you have the mental capacity to do so, without applying to the Court of Protection.

To cancel a registered EPA you must show the Court of Protection:

• That you understand who the attorney is and what powers they have
• That you understand the effect of the cancellation
• Why the EPA needs to be cancelled

An EPA is revoked if you or the appointed attorney becomes bankrupt.