4. Wills and Powers of Attorneys

Do you require a Power of Attorney or Will prepared?

I can prepare and/or attest Powers of Attorneys and Wills for individuals, both for the United Kingdom and overseas. Also Prepare and register Lasting Powers of Attorney with the Office of the Public Guardian.

What is a Power of Attorney?

Power of Attorney (POA) is a legal document by which you (called principal/donor etc.) can give authority to a friend or relative (called agent/attorney/donee etc.) to do certain acts and things, e.g. sale of property or withdrawal of monies from bank accounts, on your behalf. A power of attorney can be general or it can be special. General power of attorney essentially authorises the agent to do all acts and things that you the principal could do if personally present. Special Power of Attorney on the other hand will be for specific purposes stated in the power of attorney. If you are going away, e.g. on holidays or for work, and some matters have to be dealt with in your absence, you can make a power of attorney but the Power of Attorney must only be given to someone you can trust as there is a potential for misuse.

What is a Lasting Power of Attorney and how does it differ from ordinary Power of Attorney?

Lasting Powers of Attorney is a like an ordinary power of attorney but it only becomes effective once it has been registered with the Public Guardian. As it has to be prepared on a statutory form, it is quite a lengthy document compared to an ordinary power of attorney. You can make an LPA for property and financial affairs or/and for health and welfare. The advantage of the Lasting Power of Attorney (LPA) over the ordinary POA is that the LPA does not come to an end in the event that the donor of the LPA loses his/her mental capacity. The LPA avoids the costlier route of having to apply to the Court of Protection for an order if a person loses his/her mental capacity. For more information, please call to discuss.

What is a Will and why should I make a Will?

Wills. Generally, the power of attorney comes to an end on the death/bankruptcy/loss of mental capacity of the principal. Therefore, if your intention is that if you want your property or other assets to go to your nominated beneficiaries after your death, then you need to make a Will. Although a person of sound mind, who is aware of all his/her assets and appreciates the claims of his/her family or others that he should give effect to, can leave his/her estate to any person or body of his/her own choosing, but please note that this freedom is to some extent tempered by Inheritance (Provision for Family and Dependants) Act 1975 which gives certain categories, e.g. spouses, children and other dependants, a right to claim in the courts that a reasonable provision for them has not been made in the Will. The court has the power to make a reasonable provision for an individual or individuals if the court is of the view that no reasonable provision has been made when in the circumstances there should have been a reasonable provision in the Will for the claimant.

What happens if there is Intestacy and no valid Will?

If you do not make a Will, then your estate will devolve according to the fixed intestacy rules and not according to your wishes. In some cases, this could cause hardship to the surviving spouse/civil partner. For example, if a person dies and had owned a house in his/her sole name and is survived by his/her spouse/civil partner and children. The spouse will get the first £270,000, personal chattels and one-half of the remainder. If the house is worth, say, £500,000, and is in the sole name of the deceased, then the surviving spouse/civil partner will have to either sell the house if the children want their shares immediately or buy out the children's share. Therefore, it is important that you make a Will. Children includes adopted children.

If there is no Will, your estate will be distributed according to the terms of the Section 46 of the Administration of Estates Act 1925. UK Government has a website which shows what happens to your estate if there is no Will: https://www.gov.uk/inherits-someone-dies-without-will

By making a Will, you decide how your assets are distributed, who your executors are and if you have young children, who their guardians will be.

Therefore, it is important that you make a Will if you wish to decide how your estate is to be distributed. Please call Ram Bansal on 020 3118 2063 for further advice.

From 1 October 2014, the Inheritance and Trustees' Powers Act 2014 came into force, please note the Definition of “personal chattels”

For paragraph (x) of section 55(1) of the Administration of Estates Act 1925 (definitions) substitute—

“Personal chattels” means tangible movable property, other than any such property which—

- consists of money or securities for money, or

- was used at the death of the intestate solely or mainly for business purposes, or

- was held at the death of the intestate solely as an investment:”.

If a will or codicil containing a reference to personal chattels defined (in whatever form of words) by reference to section 55(1)(x) of the Administration of Estates Act 1925 was executed before the coming into force of subsection (1), then unless the contrary intention appears subsection (1) is to be disregarded in interpreting the reference to personal chattels.

Disclaimer: These notes are not a legal advice but only for guidance and no responsibility can be accepted for any reliance placed on them. By their nature, the Wills and Powers of Attorneys are specific for their purposes, subject to testator/principal's personal circumstances and subject to complex laws. Therefore, you must seek independent legal advice before making a Will or Power of Attorney.