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Wills and Lasting Powers of Attorney - Common Misconceptions

16th March 2018

More often than not, leaving things to chance won’t work out in the way that you hope. We examine some of the common myths and misconceptions around the consequences of insufficient life planning.

Call Co-op Legal Services for initial advice on 03306069591 or contact us online and we will help you.

Who Will Get My Home and Possessions When I Die?

The only way to ensure that your wishes are legally recognised about who you want to inherit your house and everything else that you own after you die is by making a Will. This allows you to set out how you would like your home and possessions to be inherited, and by whom, when you die.

If you die without a valid Will in place, then the law will decide who inherits any property and possessions that you own. This is determined under what’s known as the Rules of Intestacy. These rules set out who should inherit in order of priority, based on people’s relationship to you.

If you have no living relatives at all, then under the Intestacy rules everything that you own would go to the Crown (actually, the Duchy of Cornwall to be precise).

I Live with My Partner, Surely they Would Get the House after I Die?

Some people think that if they live with their partner, then their partner will automatically inherit the home and its contents after they die. This is not necessarily the case. It all depends on how the house and contents are owned between you and also the legal status of your relationship. 

There is no such thing as a “Common Law Marriage” under the law of England & Wales and as such the Rules of Intestacy don’t recognise unmarried or unregistered partners.

This means that if you own the house in your sole name, your partner would not automatically be recognised as the person who should inherit this from you, unless you had a legally valid Will in place.

Even if you own the property jointly there’s still no guarantee that, without a Will in place, your partner will inherit your share of the property. This depends on how you own it together. If the property is owned by you both as Tenants in Common, then this means that you each own a share of the property. When you die, your share will be recognised in the same way as any of your other belongings, and this will be passed on under the Rules of Intestacy. Again, in these circumstances your partner, unless you’re married or in a civil partnership, will have no automatic entitlement under the Rules of Intestacy.

If you own the property as Joint Tenants, however, then this means that neither of you owns a specific portion of the house, but instead, you jointly own 100% together. Under these circumstances, upon the death of a joint owner, the legal ownership would pass into name(s) of the surviving joint owner(s).

For more information, see Joint Tenants and Tenants in Common.

If I Develop Dementia Or Suffer A Serious Accident, Can My Family Take Care of Things?

Many people assume that if they became unable to manage their own affairs, then their family would be able to step in and take control. Sadly, this is not the case and many people don’t realise this until it’s too late. 

The only way that you can give your family the legal authority to deal with your health, welfare or finances on your behalf is to put a Lasting Power of Attorney (LPA) in place while you are still capable of doing so.

There are two types of LPA – the first is for property and financial affairs and the second is for health and welfare. An LPA lets you appoint someone (or a few people) you trust to step in and take care of things if you’re no longer able. This person is called your Attorney.

If you lose the ability to understand the nature and effect of putting an LPA in place, then it’s too late to make an LPA – this can only be done by you and whilst you still have sufficient mental capacity to understand the implications.

The consequences of not having an LPA can be disastrous. If you develop dementia or suffer a serious accident that renders you unable to make decisions about your affairs, then without an LPA in place, your family will be powerless to automatically step in and take care of matters for you. Their only option would be to apply to the Court to be appointed as a deputy for you. This process involves a significant amount of paperwork, can take several months and the initial set up costs and ongoing costs can run into many thousands of pounds.

Even Without an LPA, Surely My Wife/Husband Can Take Care of Matters for Me?

Even your spouse may not have legal authority to take care of things for you if you have not appointed them as your Attorney under an LPA. If this is the case then they will not be able to access any bank accounts or deal with any assets that are owned in your sole name, including your home, even if they live there too.

Furthermore, even if your bank account is held in joint names, there are 2 things to consider. Firstly, at some stage, one of the account holders is going to die first, which means that at some stage in the future, the account will cease to be jointly owned. If the surviving account holder doesn’t have capacity then an LPA will still be required.

Secondly, if one of the account holders has lost capacity, the bank may still prevent the other account holder from accessing the account. It’s worthwhile taking the time to understand the particulars of your banking facility and ask your bank for their written policy on incapacity of an account holder, don’t just rely on what they may tell you verbally.

With regard to your general welfare or what medical treatment you should receive, your spouse will not have the legal authority to make decisions on your behalf. This is particularly important if a decision needs to be made about whether life sustaining treatment is to be withheld. As a result, these decisions could potentially be made by other people on your behalf.

Not made a Will? For initial advice call our Will writers on 03306069591 or contact us online and we will help you, or Start your Will online and get the right Will for you in 4 steps.

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