News & Thinking
Where there’s a Will there’s a way
The COVID-19 pandemic may prompt you to consider whether your existing estate and asset planning arrangements are appropriate and up to date.
It is an exercise that is often put in the ‘too hard’ basket because, well, let’s face it, there are usually other, more interesting things to do in what little spare time you have. The lockdown period might however just be the impetus you need – and the opportunity you thought would never present itself – to shorten your ‘to do’ list. So what should you do?
Should I make or update my Will?
First of all, do you have a Will? If you don’t, you run the risk of making things more difficult – and expensive – than they need to be for those you leave behind. A Will is your last word on what you want to happen with your assets.
If you have a Will, it is important to make sure it is up to date. There’s a pretty good chance that over the many years since your Will was last updated, life has caught up and overtaken what was set out in that Will. Children may have grown up, married and had children; people you nominated as executors may have moved away, or lost touch or even passed away; relationships may have changed as a result of divorce, death or estrangement and of course, your financial circumstances might be quite different from what they were all those years ago.
Can I create a trust instead of a Will?
It may be that any one or more of the above changes in your life is reason to consider whether a trust is more appropriate to achieve your estate and asset planning objectives rather than just a Will. . Trusts and wills are different. Even if you have a trust, you still need a Will because they each deal with assets belonging to different legal owners. A trust deals with assets owned by the trust whereas a Will deals with whatever assets you own personally. From a legal perspective, they are mutually exclusive documents and while you can have a Will without a trust, you definitely should not have a trust without a Will.
Can I make a Will during lockdown?
In short, yes! The Government has just enacted emergency legislation that enables the signing and witnessing of Wills via an audiovisual link. This means that you will still be able to execute your Will remotely during the lockdown period. We are using “Zoom” for this and it has been very successful.
While you are thinking about your Will, you also need to think about another important estate and asset planning document – the Enduring Power of Attorney.
Should I grant Enduring Powers of Attorney?
Just like a Will is your last chance to say what you want to happen to your estate when you pass away, Enduring Powers of Attorney are your chance to decide who you (not someone else appointed by the Court) want to make decisions for you with regard to your Personal Care & Welfare and also your Property, if you are unable (or unwilling) to make the decisions.
If you have already granted Enduring Powers of Attorney, depending how long ago you did that, it might be a good time to check if they are still current. Maybe children have grown into adults and would be appropriate to appoint as attorneys; perhaps the current attorneys have moved, passed away or even lost capacity themselves. Maybe your relationship status has changed and a former spouse or partner is still your attorney.
Can I grant Enduring Powers of Attorney during lockdown?
Whether you are looking to update existing documents or put in place Enduring Powers of Attorney for the first time, this too is something we can do during lockdown via an audiovisual link..
A future edition of our newsletter will touch on Trusts and related matters, including the new Trusts Act which comes into effect at the end of January next year.
If, in the meantime, we can assist with any enquiries or requirements in respect of Wills and/or Enduring Powers of Attorney, do not hesitate to contact us.
Disclaimer: The material contained in this document is provided only as an information source, and is correct at the time of writing. The material is a generalised summary of the key issues and is not intended as a substitute for specific professional advice and should not be relied on for such a purpose. Independent professional advice should be obtained before relying on any aspect of this material and we would be happy to assist in this regard.