How to get your affairs in order during lockdown
Our private client specialists consider some of the common queries families have on Wills, Lasting Powers of Attorney and Probate whilst in lockdown.
1. My aunt is self-isolating, doesn't have internet banking and is unable to get to the bank. With her permission can I carry out her banking and manage her financial affairs at this time?
You will only be able to step in and manage your aunt’s personal and financial affairs if there is a registered Lasting Power of Attorney in place authorising you to do so. In the absence of a registered Lasting Power of Attorney (or a Deputyship order), you will have no legal authority to act on her behalf. It is important to note that you can only put a Lasting Power of Attorney in place whilst you have capacity and are able to fully understand the nature and effect of the document. After the point that capacity is lost, you cannot enter into a Lasting Power of Attorney and no one can do so on your behalf.
In the event that there is a registered Lasting Power of Attorney in place, restrictions can apply depending on how the Donor has set up the documents (i.e. it may be specified that attorneys can only act in certain circumstances, for example). If you are unsure as to the operation of the Lasting Power of Attorney, it is recommended that you seek expert advice regarding your duties and obligations as an attorney.
2. How quickly can a Lasting Power of Attorney be put in place?
A Lasting Power of Attorney (‘LPA’) is a legal document that allows you to choose people to act on your behalf, should you later begin to lose your ability to manage your personal affairs because of physical or mental incapacity. It takes effect, if need be, during your lifetime and is completely separate to a Will.
There are two types of Lasting Power of Attorney available:
- Health and Welfare Lasting Power of Attorney
- Property and Financial Affairs Lasting Power of Attorney
LPAs are powerful documents that require a great deal of thought, and it is imperative that the forms are completed correctly and executed in the specified order or they will be rejected at the Office of the Public Guardian. Consideration should be given as to who you wish to appoint as your attorneys (the people who you wish to act upon your behalf) and whether or not you wish to include specific guidance/restrictions. It will also be necessary to appoint an appropriate Certificate Provider and to ensure that this appointment meets the legal requirements.
Once the document has been completed and signed by all parties in the prescribed order, it can be submitted to the Office of the Public Guardian for registration. The current registration timescale provided by the Office of the Public Guardian is 7-10 weeks. Once the document has been registered, in the case of a Property and Financial Affairs LPA, it can be used immediately by the attorney if required. In the case of a Health and Welfare LPA, this can only be used by the attorneys of the donor has lost capacity.
Whilst it is possible to create LPA documents online, due to the nature of the documents and the power they contain, it is advisable to seek expert legal advice to ensure that the documents are created accurately and in a timely fashion.
3. I am unable to attend my solicitor's office to sign my Will. Can my son and daughter who live with me act as witnesses?
For a Will to be valid it needs to be signed in the presence of two independent adult witnesses, who both need to be present at the time of signing and then sign the document themselves. As a rule, we do not recommend that a family member acts as a witness. Furthermore, if you son and daughter are named as beneficiaries in your will, then it will not be appropriate for them to act as witnesses. In the event that a beneficiary acts as a witness, the gift to that particular beneficiary will fail. This will also apply if the document is witnessed by the spouse of a beneficiary. Whilst the current social distancing guidelines that are in place can make the signing of wills more complicated, it is still imperative that the correct procedure is followed.
4. What happens if a gift in the Will failed? Would my Will be invalid?
No, the will would remain valid but the beneficiary would lose their entitlement to any benefit they had been left under the will. To avoid this happening, it is important to seek guidance as to the correct formalities that need to be adhered to.
5. How can I ensure that my Will is correctly signed and witnessed in light of the Covid-19 social distancing measures that are in place?
A Will must be properly witnessed in order to be valid and, even in light of the current pandemic, restrictions have not been relaxed. As a result, witnessing a Will virtually (via Skype or similar) is not an option and will not constitute valid witnessing.
A Will that has not been correctly witnessed could be open to challenges and may even fail to be accepted by the Probate Registry following death, so it is important that you full comply with the requirements.
In order for a Will to be validly executed there must be three people present: the person making the will and two independent witnesses. In the current climate, it has become necessary for witnesses to sign at a safe 2m distance. This can be done in a number of ways, for example, standing on your doorstep to sign whilst both your witnesses stand on the driveway to witness you signing before signing their own sections. Guidelines suggest that gloves are worn by all parties handling the document and pens are not shared.
Safety is paramount, and we strongly recommend that you obtain comprehensive singing instructions from your solicitor before signing your Will.
At RDP, in addition to providing full instructions as to how the Will should be executed, we are also offering our clients the opportunity to attend at the offices, free of charge, after lockdown has ended in order that their Will can be reproduced and signed with RDP staff acting as witnesses.
6. Can I make my own Will at home?
A Will is an important and binding legal document and, whilst it is possible in theory to prepare a homemade Will, we strongly recommend that you instruct a professional to assist you in the preparation of your Will to ensure that your wishes are met and that all legal formalities are complied with. In the event that the Will has not been correctly prepared, your wishes could be misinterpreted which, in turn, could be time consuming and costly to rectify. In order for your estate to be distributed in the manner you wish, we strongly recommend that you instruct a professional to prepare your Will for you.
At RDP, we discuss your circumstances in full and identify any issues that you may not have been aware of, including the tax implications of the operation of your Will. We can then advise on how to structure your Will in a way that will achieve your objectives and ensure that your wishes are met.
We are able to offer virtual meetings in order to discuss your planning requirements and to answer any questions you may have. Once a full meeting has taken place and a Will has been prepared for you, we will provide full instruction as to the safe execution of the document. As previously mentioned, we are also offering our clients the opportunity to attend at the offices, free of charge, after lockdown has ended in order that their Will can be reproduced and signed with RDP staff acting as witnesses.
7. My grandmother has died leaving a Will that leaves her estate equally between me and my brother. As there is a Will in place will we need to bother getting probate?
Having a will in place does not automatically mean that a Grant of Probate will not be required. Whether or not a Grant of Probate is required will depend on the nature of the estate and the level of the deceased’s assets. Any jointly held assets (such as a jointly held property or bank account) will pass automatically to the surviving owner without the need to a Grant of Probate. Solely held land and buildings will require a Grant of Probate before they can be dealt with by the Executors, as will solely held savings and investments. Banks and other financial institutions set their own limit above which Probate will be required, so it's worth checking with the individual asset holder as to whether or not they require a Grant of Representation.
8. How long will it take to get a Grant of Probate?
The time it takes to obtain a Grant of Probate (‘Grant’) varies according to the circumstances and each estate is different. It may only take 2-3 months for the Grant of Probate to be obtained if there are no complications, inheritance tax is not payable and there are no complications or delays.However, in more complex cases, it can take in excess of 6 months for the Grant to be obtained. Another factor is the response time of the Probate Registry, which varies according to demand. If you are instructing a professional to obtain a Grant on your behalf, they will be able to provide a timeframe at the outset of the matter.
Once a Grant of Probate has been obtained, the executors of the estate can then begin the process of encashing the assets of the estate. The time it will take to encash assets, settle liabilities and distribute the estate in accordance with the terms of the will is dependant on the nature of the assets that are being distributed and the number of beneficiaries.
*All information provided in this article was correct as of 07/05/2020.
If you have any questions on anything covered in the above article please contact our Private Client experts by emailing firstname.lastname@example.org or calling 01633 413500. For more information on services available visit our Individuals page of the website.