Making a will and Lasting Powers of Attorney: why they matter

Nobody enjoys thinking about death, or about losing the ability to make decisions. But a valid will and Lasting Powers of Attorney are two of the most useful things you can put in place for the people you care about. This guide explains why they matter, how they work in England and Wales, and what to watch out for.

Why make a will?

If you die without a valid will, you die “intestate” and the law decides who inherits, following a fixed order of relatives. GOV.UK has a tool showing who inherits if someone dies without a will. The rules can produce results people don’t expect:

• Unmarried partners inherit nothing under the intestacy rules, however long you have lived together. They may have to go to court to claim reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, which is stressful, slow and uncertain.
• Stepchildren don’t inherit under the intestacy rules unless they were legally adopted.
• Friends and charities receive nothing.
• A spouse or civil partner does not always inherit everything; it depends on the size of the estate and whether there are children.

A will also lets you choose your executors, the people who sort out your estate; appoint guardians for children under 18; leave specific gifts; set up trusts; and record your wishes about your funeral.

Making a valid will

Under section 9 of the Wills Act 1837, a will in England and Wales must be:

• in writing;
• signed by you (or by someone else in your presence and at your direction), intending it to take effect as your will;
• signed or acknowledged by you in the presence of two witnesses who are both present at the same time; and
• signed or acknowledged by each witness in your presence.

You must also have mental capacity to make a will, and must not be under pressure from anyone else. One common and costly mistake: a witness, or a witness’s spouse or civil partner, should not be a beneficiary. If they are, the will usually remains valid, but their gift is lost.

Events that affect a will

• Marriage or civil partnership normally revokes an existing will in England and Wales, unless the will was made in expectation of that particular marriage or partnership.
• Divorce or dissolution does not revoke the will, but your former spouse or civil partner is generally treated as if they had died, so gifts to them and their appointment as executor fail.
• New children or grandchildren, a house move, a death in the family or a big change in your finances are all good reasons to review your will.

Don’t write changes on an existing will. Use a formal codicil or make a new will. Keep the original somewhere safe and tell your executors where it is.

DIY or professional help?

Simple wills can be made using a template, but mistakes are common and often only discovered when it’s too late to fix them. Professional help is worth considering if you have children from more than one relationship, own a business or property abroad, want to provide for someone vulnerable, or expect inheritance tax to be an issue. If you use a solicitor, you can check the firm on the Solicitors Regulation Authority’s register. Will writing is not a reserved legal activity, so some will-writers are not regulated by a legal regulator; ask about their insurance and complaints procedure before you sign up. GOV.UK’s making a will page is a good starting point.

Lasting Powers of Attorney: planning for while you’re alive

A will only takes effect when you die. A Lasting Power of Attorney (LPA), made under the Mental Capacity Act 2005, lets you choose people you trust, your attorneys, to make decisions for you if you can’t make them yourself, for example after an accident or a stroke, or with dementia. There are two types:

• Property and financial affairs: managing bank accounts, paying bills, collecting pensions and benefits, and selling your home if needed. With your permission it can be used while you still have mental capacity, which can help if you are in hospital or simply want practical support.
• Health and welfare: decisions about daily routine, medical care, moving into a care home and, if you choose, life-sustaining treatment. It can only be used when you lack capacity to make the decision yourself.

You must have mental capacity when you make an LPA. It must be signed in the right order, include a “certificate provider” who confirms you understand it and aren’t under pressure, and be registered with the Office of the Public Guardian before it can be used. You can make one online or on paper, and GOV.UK explains how. There is a registration fee, with reductions or exemptions for some people on lower incomes or certain benefits.

What happens if you don’t have an LPA?

Many people assume their spouse, partner or children can simply step in. They can’t, at least not for everything. Banks may freeze accounts in your sole name, and jointly owned property can become hard to sell. Your family may need to apply to the Court of Protection to be appointed as your deputy. That is usually slower, more expensive and more intrusive than making an LPA, and it is the court, not you, that decides who acts for you.

Choosing attorneys and executors

• Choose people you trust completely, who are organised and willing to take it on.
• Consider naming replacements in case your first choices can’t act.
• Decide whether attorneys must act together on every decision (“jointly”) or can also act alone (“jointly and severally”). Each option has pros and cons.
• Talk to them about your wishes. It makes their job far easier.

Scotland and Northern Ireland

The rules are different. Scotland has its own law on wills and uses continuing and welfare powers of attorney, registered with the Office of the Public Guardian (Scotland). Northern Ireland uses enduring powers of attorney. If you live there, check local guidance.

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