Wills

Q. Why make a Will?  

A. To distribute your assets as per the terms of your Will to your Family.  It also means you avoid the Statutory Rules re: Intestacy – See Intestacy below.  Making a Will allows you to appoint Executors to administer your estate on your behalf.  The Executors have the power to sell your property and encash your assets and then are under the obligation to discharge any monies you owe i.e. your Funeral Account and any outstanding debts and then to distribute your assets in accordance with the terms of your Will.  

Q. Do a Husband and Wife each need a Will?  

A.Each person should make a Will and the Will is personal to you and cannot be made by one person on behalf of another.  Generally in their will a Husband and Wife leave assets to each other and then on the second death to the children.  It therefore is important both the Husband and the Wife each make a Will as no-one knows who will pass away first.  

Q.What happens if you do not make a Will?  

A. You die Intestate and under the Administration of Estates Act (Northern Ireland) 1955 (as amended) it is set out who of your family has the right in priority of each other to claim the assets of your estate.  This means in effect if you have failed to make a Will legislation has been put in place to set out the formula for the distribution of the estate.  This statutory mechanism may not distribute the estate in the manner you wish and therefore it is important for you to have made a Will to prevent this situation arising.  

Q.I do not have any assets do I need to make a Will? 

A. You may think you have not any sizable assets in your estate.  However you might have a Life Insurance policy which pays off your Mortgage or you have a Death in Service provision with your Employer and a lump sum is paid or your Pension Fund becomes available and forms part of your estate.  You therefore may have assets on death that you do not have easy access to during lifetime.  It is therefore important you do have a Will written to deal with any such assets.  

Q.How much does it cost to make a Will? 

A.A straight forward simple Will should cost under £125.00.  If you require a more complicated Will e.g. involving a Trust or Inheritance Tax Planning then we will quote you a fee in respect of drafting a more complicated Will.  

Q.What is Intestacy? 

A. This is where you die without making a will and your estate is administered according to the rules set out by legislation.

Q.Who are issue?  

A.Issue are generally the blood line of your Beneficiary i.e. if a child predeceases you and the gift in your Will is left to your Beneficiary the gift will pass to their children i.e. your grandchildren.  

Q.What is a Trust? 

A.  A Trust is a legal instrument to appoint Trustees and for the transfer of assets to a Trust either during your lifetime or on your death through your Will.  Trusts are governed by various pieces of legislation and most recently by the Trustee Act (Northern Ireland) 2001.  Trusts have their own Tax Regime governed by HMRC and special advice is needed if you are deciding to create a Lifetime Trust or a Trust in your Will to make you aware fully of the implications of a Trust.  

Q.What is an Enduring Power of Attorney? 

A.An Enduring Power of Attorney is a legal document created by the Enduring Powers of Attorney (Northern Ireland) Order 1987.  It means you can appoint Attorneys to act during your lifetime to manage your finances if you are mentally capable or indeed if you subsequently become mentally incapable.  It is a good idea to enter into an Enduring Power of Attorney where you have next of kin you fully trust and can rely on to manage your finances for you.  There is a Registration system through the Office of Care and Protection to activate the Enduring Power of Attorney if the Donor has become mentally incapable or is becoming mentally incapable.  However after the Registration process has been completed there minimal supervision of the Attorney by the Office of Care and Protection.  However the Attorneys are accountable to the Executors of your estate and to the Beneficiaries of the estate as to how your monies were spent during your lifetime.  

Q. What is a Lasting Power of Attorney?  

A.You cannot execute a lasting Power of Attorney in Northern Ireland.  This is the system in place in England and Wales and the main difference is it covers physical incapacity as well as mental incapacity.  There is a review of Mental Health Law ongoing in Northern Ireland and it may be in due course our system will be amended to allow us to enter into Lasting Powers of Attorney.   

Q.What is a Controllership through the Office of Care & Protection? 

A. If you have not executed an Enduring Power of Attorney and unfortunately lose your mental capacity then your next of kin can apply to the Office of Care and Protection to be appointed your Controller and you will be made a Patient of Court.  An Insurance Bond may be required by the Court to insure against the risk of any fraud by your Controller.  Annual Accounts are required to be made to the Office of Care and Protection by your Controller to account for the expenditure of your assets and also to account for your income coming in to your Bank Accounts.  If your house for example is to be sold to fund long term healthcare the consent of the Court is required for the sale.  The Office of Care and Protection charges Court fees on every matter or transaction brought in front of them and therefore this can be an expensive way for your assets to be administered during your lifetime. 

 

Contact

Anne Copeland - anne.copeland@diamondheron.com or tel 028 9040 8227

Anna Watters - anna.watters@diamondheron.com or tel 028 9040 8223

Cherry Hill - cherry.hill@diamondheron.com or tel 028 9024 3726