Q&A - Making a Will and dealing with an estate

Caring for someone Practical matters
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As part of Dying Matters Awareness Week we’re encouraging everyone to take five simple steps to make their end of life experience better, both for them and their loved ones. One of these is writing a Will, so we’re taking your questions now on how to do that and on how to deal with an estate if a family member has died.

Our host Gillian Coverley will be answering your questions tomorrow, Wednesday and Thursday (19th,20th and 21st of May) between 3-4pm each day. You can start posting them now and she’ll start answering them tomorrow when she’s online. Just scroll down to read her answers.

[img]http://i.imgur.com/LOtvc6O.jpg?1[/img]

Gillian is the lead Partner of the national Wills Trust & Probate team at Irwin Mitchell LLP dealing with wide ranging private client matters introduced from major high street financial institutions, retailers and charities. She has over 20 years’ experience in this area and is a Member of the Society of Trust & Estate Practitioners (STEP).

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Hi my father has been diagnosed with terminal cancer and hasn’t wanted to talk about making plans for things likes wills up until recently. But now he does we don’t really know where to start? Does he need to talk to a lawyer? What do we need to think about before talking to one? Sorry I’m a bit lost on this subject. Thanks.

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Hi Ruby,

There is no legal requirement for a Will to be prepared by a lawyer.

But there are legal requirements for the construction and contents of a Will: rules about witnesses, etc. I wrote the Wills of both of my now deceased parents, and also did both Probates/Administration, and there were no particular problems - and certainly a few years ago, [goverment] Probate Offices were very helpful, to laymen who were applying for probate themselves (I think the term is ‘application in person’).

But it depends ‘how nerdy you are’ (I would NOT recommend using a ‘Will form’ {online or paper} - if you are writing your own Will, you need to do some reading up) and also how complicated the situation is. If there are lots of different beneficiaries, and if there is property to be transferred, or assets abroad (which includes in Ireland) it would almost certainly be best to use a lawyer to create the Will (although I would recommend that you do NOT make the lawyer an executor - and definitely do NOT make a ‘bank’ an executor). If your dad is leaving everything to just one person, such as a wife, and any property is already held as Joint Tenants (from memory), the challenge of writing your own Will and getting it right, is much reduced.

Most people will use a lawyer to create the Will, ‘for peace of mind’.

Your dad might also consider making one or more of his family a Welfare Attorney under the Lasting Powers of Attorney Act (and if he decides to do that, he should do it as soon as possible) - in theory, provided he give the right powers to his attorneys, if he loses the capacity to make his own decisions about his healthcare as he becomes more ill, his attorneys are empowered to make the decisions (this does not always work out that way - some doctors and nurses, and especially paramedics, act illegally by failing to respect the best interests decisions made and expressed by attorneys [although sections 6(6) and 6(7) of the Mental Capacity Act, and section 7.29 of the MCA’s Code of Practice could hardly be any clearer !]. There is a cost to using the LPA to appoint an attorney(s).

He can also use the LPA to appoint a different type of attorney, who could control his financial affairs if he loses the mental capacity to continue doing that himself - also worth considering.

I hope you get some more responses from others, and I’m sorry about your dad’s illness,

                                    Best wishes, Mike
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[quote]Question from Ruby: Hi my father has been diagnosed with terminal cancer and hasn’t wanted to talk about making plans for things likes wills up until recently. But now he does we don’t really know where to start? Does he need to talk to a lawyer? What do we need to think about before talking to one? Sorry I’m a bit lost on this subject. Thanks.[/quote]

Thank you for your question. I am sorry to hear about your father’s diagnosis and it is natural to want to make or update a Will at that time. Making a Will is the only way your father can ensure that those he wants to inherit his assets actually do. Without a will in place, your father’s estate would pass under the rules of intestacy. This is basically a list of people who inherit and this may be entirely different to what your father would want.

Your father should ensure that he consults a suitable qualified person to draft the Will. They can ensure it is drafted correctly and legally binding and give your father the peace of mind he needs. Some legal firms offer will writing by post or even via completion of an on-line questionnaire. This can be useful if your father cannot get to see someone in person. Your father will need to consider, amongst other things, who he wishes to benefit from his estate and assets and who is appointed to carry out his wishes ( called the Executor) set out in the Will.

There is some really useful information on how to make a Will on this link;

https://www.mariecurie.org.uk/help/terminal-illness/planning-ahead/making-a-will

Gillian Coverley, Irwin Mitchell LLP

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[quote]Reply from the Hod Carrier: Hi Ruby,

There is no legal requirement for a Will to be prepared by a lawyer.

But there are legal requirements for the construction and contents of a Will: rules about witnesses, etc. I wrote the Wills of both of my now deceased parents, and also did both Probates/Administration, and there were no particular problems - and certainly a few years ago, [goverment] Probate Offices were very helpful, to laymen who were applying for probate themselves (I think the term is ‘application in person’).

But it depends ‘how nerdy you are’ (I would NOT recommend using a ‘Will form’ {online or paper} - if you are writing your own Will, you need to do some reading up) and also how complicated the situation is. If there are lots of different beneficiaries, and if there is property to be transferred, or assets abroad (which includes in Ireland) it would almost certainly be best to use a lawyer to create the Will (although I would recommend that you do NOT make the lawyer an executor - and definitely do NOT make a ‘bank’ an executor). If your dad is leaving everything to just one person, such as a wife, and any property is already held as Joint Tenants (from memory), the challenge of writing your own Will and getting it right, is much reduced.

Most people will use a lawyer to create the Will, ‘for peace of mind’.

Your dad might also consider making one or more of his family a Welfare Attorney under the Lasting Powers of Attorney Act (and if he decides to do that, he should do it as soon as possible) - in theory, provided he give the right powers to his attorneys, if he loses the capacity to make his own decisions about his healthcare as he becomes more ill, his attorneys are empowered to make the decisions (this does not always work out that way - some doctors and nurses, and especially paramedics, act illegally by failing to respect the best interests decisions made and expressed by attorneys [although sections 6(6) and 6(7) of the Mental Capacity Act, and section 7.29 of the MCA’s Code of Practice could hardly be any clearer !]. There is a cost to using the LPA to appoint an attorney(s).

He can also use the LPA to appoint a different type of attorney, who could control his financial affairs if he loses the mental capacity to continue doing that himself - also worth considering.

I hope you get some more responses from others, and I’m sorry about your dad’s illness,

Best wishes, Mike[/quote]

Mike

I entirely agree that it is also good advice to suggest a Power of Attorney for both Property & Finance and Health & Welfare. These are separate documents and different attorneys can be used for each if you wish. It is far better to appoint someone as Attorney now than wait for loss of capacity and have to make an application to appoint someone called a Deputy to look after affairs. The costs and time spent in appointing a Deputy are far greater than those in appointing an Attorney now.

There is further information on the Office of the Public Guardian website along with forms to complete if you wish to do this yourself. Alternatively you can ask a Solicitor to do this for you and advise on the most suitable choice of Attorneys and the extent of powers you may be handing over to them.

https://www.gov.uk/government/organisations/office-of-the-public-guardian

Gillian Coverley, Irwin Mitchell LLP

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Hello a good friend of mine is faced with terminal cancer and she’s looking at getting a will written, but she’s a bit confused about how it’s going to work with her having children from two marriages to include, along with a step child as well. She wants to make sure everyone’s looked after and that there aren’t problems when she’s gone. Is there any advice I could pass along to her? Thankyou.

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Question from DRT60:

Hello a good friend of mine is faced with terminal cancer and she’s looking at getting a will written, but she’s a bit confused about how it’s going to work with her having children from two marriages to include, along with a step child as well. She wants to make sure everyone’s looked after and that there aren’t problems when she’s gone. Is there any advice I could pass along to her? Thankyou.

[/quote]

Thank you for your question. It is vitally important that your friend makes a Will. The intestacy laws which govern what happen when there is no Will, will not be sufficient to pass her assets on as she wishes.

You have not stated how your friend would wish to benefit her children and if she wishes to include her step child but on the assumption that she does, she will need to consider her assets, the value of those assets and how much of those she would like to leave to each child/step-child and the respective splits between each. She should take legal advice to guide her through the process. If she is currently married, she may also need to consider her husband and how he can be protected. Often trusts are used in these circumstances to ensure that everyone is looked after and ultimately the people you want to inherit actually do.

As I said in a recent response, your friend should consult a suitably qualified person to draft the Will and give appropriate advice on how the competing interests of her family can be dealt with. If she fails to do this properly or does not make a Will, there is a very real risk that there may be a dispute after her death if someone has been left out or does not receive what they expected. I hope that your friend is able to deal with making a Will soon and get the peace of mind she needs.

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That’s the end of today’s Q&A session so thank you very much to Gillian and everyone who asked her questions. Hope you all found it useful.

We’ll be doing another Q&A session on “Self-care for carers” here on 2-4 June. You can follow our Facebook page or Twitter account for a reminder of when that’ll be on.

Thanks