What is it?

Quite simply, it's a legal document that will allow someone (of your own choosing), to look after your affairs should one day you be incapable of dealing with them personally.

Why bother?

Nobody likes to think of the possibility that someday they may find themselves incapable of handling their own affairs due to illness or accident. But whilst there is no need to be unduly alarmed, the fact remains that as many of us are living far longer than our ancestors did due to things such as advances in medical science, and sometimes our physical bodies can outlive our brain's capacity to effectively support them. (This is often referred to as becoming incapax.)

What happens if I don't do anything and I do become incapax?

Someone (usually a close family member) would need to apply to the court for a Guardianship Order. (This takes time and typically costs £2,000 to obtain.). Guardianship orders are not as effective as pre-arranged Power of Attorney documents and only last for a period of three years.

In addition, Discretionary Trusts are often a valuable tool to use in sensible estate planning with regard to such things as potential Inheritance Tax situations, and a Power of Attorney can be useful document in association with these Discretionary Trusts in helping to protect your needs and those of your family. (This cannot be said of Guardianship Orders)

Common Misconception

One common misconception is that when one spouse dies without a Will the whole Estate will pass to the surviving spouse. This is not necessarily the case. Another popular misconception is that children will not inherit until they are 18 or 21. In fact nowadays children inherit at 16 unless there is a Will which provides otherwise.

CLIENT RESISTANCE

Clients very often put forward reasons as to why they have not made a Will and why they do not wish to make a Will.

"I am too young to make a Will". People often think that making a Will is only for old people but this is simply not the case. You might have a 30 year old who is married and has young children and who might leave substantial estate including a Death In-service payment. He might think that everything will automatically go to his wife but that is not necessarily the case and he might be disturbed to learn that any part of his Estate which goes to his children will vest in them at the age of 16. If he does not wish to take these risks then he must make a Will.

"I have nothing to leave". People usually underestimate what they will be worth when they die. They forget to take into account Life Assurance Policies or Death In-service payments or likely inheritances. If the Will making process is carried out properly it will usually show the client that on death there will be a sizeable Estate and that making a Will is essential.

"I have no one to leave my Estate to". If someone has no spouse or partner and no issue then they might think there is no point in making a Will. However if they do not make a Will then the Law will decide who is to benefit and this could mean that fairly distant relatives will benefit. Not only will the customer probably not want some of them to benefit or not to benefit in the proportions decided by the law but they will usually wish to avoid the sometimes very considerable cost involved in tracing distant relatives.

"My family will do the right thing". Hopefully this is what will happen but, of course, it can never be guaranteed and it is often the case that a death in the family brings out the worst in people. There might be good reason for the Estate being distributed differently from what the Law decides but no one should ever rely on all members of the family to do the right thing.

"My affairs are too complex". Quite often people put off making the Will because their circumstances are complicated e.g. children to a second marriage and they are not sure what to do. They therefore decide that they need to go away and think about it. In practice they go away but they usually do not get round to thinking about it or even if they do they do not get round to implementing the decision. If the Willwriter encourages them to think about it there and then and helps them along by explaining the options available, it is surprising how often what at first instance appeared complicated turns out to be relatively easy. It is those who have complex circumstances that need a Will most and they need to make it as soon as possible.

"I cannot afford a Will". Clients sometime seem to think that if they have left something to someone in their Will then they must preserve it for them but this is not the case. It must be emphasised to clients that they are, of course, free to do what they want with their Estate during their lifetime and that the Will only covers what is left when they die.

"Ihave not got round to it yet". Most people know that they should have a Will and it is simply inertia which is stopping them. By taking the service to the client and removing all the hassle the Willwriter will make the task far simpler and more achievable.

"Why make a Will now". The client is already thinking about it and getting started is the hardest part. You never know what is round the corner. Illness or even worse can strike at any time. It will only cost more later on. And if you don't do it now you probably never will.