If one were to make a list of topics that people don't like to think about; death, dying and leaving loved ones behind would be likely to rank fairly highly. This is understandable, but there is no excuse for failing to write a will. If you were to die without a valid will in place, you are deemed to have died 'inestate'; in Lehman's terms, this means that in the event of your death, your estate will be divided up according to statute law, rather than to your wishes.
The aim of this guide is to inform about important aspects of will writing, including: What is a will? The different types of will, the importance of writing a will, Power of attorney and the importance of reviewing your will.
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What is a will?
A will is a legal document that signifies your wishes in regards to asset distribution and the care of children in the event of death. There are a number of different types of will, each with minor differences.
The first - and most common - type of will is referred to as a self-proving or testamentary will. This is the most traditional type of will; it is a formally prepared document that is signed in the presence of witnesses (who then also sign it). This also happens to be the most secure form of will.
A holographic will is another type of will, it is similar to a self-proving will aside from one key area; it is created and signed without witnesses. This can create problems but usually, they are legally binding as long as there is evidence that the testator (will writer) actually created the will. This can be done through a number of methods including handwriting analysis.
The testator must have been in sound state of mind at the time of writing the will. This is assumed unless there is evidence to the contrary.
The content of the will must be that of asset distribution or wishes concerning the care of a minor.
Currently in the United Kingdom, Holographic will are accepted in Scotland, but not in England or Wales.
An oral will is another type of will and, as the name suggests, it is one that is delivered verbally in front of witnesses as opposed to being recorded in writing. In the UK, this type of will is reserved for individuals serving in the military or merchant seamen on duty.
The final type of will is the living will. This is dissimilar to the above due to the matters that it concerns. The purpose of a living will is to indicate your wishes in regards to medical care and life support should you ever become incapacitated, be in a permanent vegetative state or on life support.
The Importance of writing a will
Creating a will prescribes you with sole discretion of asset distribution upon your death. It also lets you provide for the care of minor children. If you are of charitable nature, it also allows for you to donate belongings or wealth to a particular charity.
As mentioned above, if there is no valid will in place at the time of death, you are deemed to have died in a term called 'inestate' which means that the distribution of your assets is decided according to statute rather than your wishes. If a person were to die without a will in place, and they had no living relatives, the government would be entitled to the entirety of their wealth and estate; even if there is a close friend (or similar) that they would have wished it for.
The creation of a will is usually a fairly simple process and, above all, it will save your friends and relatives a lot of time and effort during an undoubtedly difficult and upsetting point in their lives.
Power of Attorney
As mentioned briefly above when talking about living wills, it is important to plan for circumstances that leave you mentally unable to make informed decisions - whether this is due to illness or accident. A living will allows you to detail specific medical treatments that you don't want to receive, but to grant a more general permission for someone to act on your behalf, power of attorney must be granted.
Power of attorney can be granted in different levels, these are:
Lasting Power of Attorney - Property and Financial Affairs (LPA PFA)
Lasting Power of Attorney - Health and Welfare (LPA HW)
General Power of Attorney (GPA)
These dictate the affairs in which the power of attorney is responsible for.
In order to be granted lasting power of attorney, the person being registered must be aged 18 or above. In the case of Property or Financial Affairs, the person cannot be declared bankrupt, in the case of bankruptcy, LPA PFA will be passed on.
The importance of viewing your will
Having written a will, there are certain circumstances that it is advisable to review your will in. In general, you should review your will if you receive a large sum of money, a family member dies, you get married, you retire, you or your partner has a child or in the event of a divorce.
The above list isn't extensive but provides a rough guide.
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