Wills and LPAs - the common myths that can leave families exposed

07 Jul Wills and LPAs – the common myths that can leave families exposed

Posted at 11:37h in Wills, Trusts & Probate by Janice ODonnell

Most people are aware that a Will and a Lasting Power of Attorney (LPA) can play an important role in protecting their family and affairs. However, there are several common myths about how they work, and those myths do not always align with the legal position in England and Wales.

Read our top 12 myths about Wills and LPA’s to ensure you can take the necessary action now to protect yourself, your family and your future.

Myth 1: Wills and LPAs are only for later life

Wills and LPAs are not just for the elderly. They are planning documents for all adults.

They matter if you have children, a home, savings, personal possessions you care about, a business, a partner, family members who depend on you or strong views about who should make decisions for you.

An LPA can be especially important because mental capacity can be affected by illness, injury, accident or medical emergency at any age. Importantly, it must be made while you still have mental capacity. If capacity is lost before an LPA is in place, the alternative may involve an application to the Court of Protection, which can be slower, more expensive and less flexible.

Wills and LPAs are usually most useful when they are prepared before they are urgently needed.

Common myths about Wills

Myth 2: My partner will automatically inherit everything

A couple may have lived together for many years. They may share the mortgage, the bills, the weekly shop and the school runs. Everyone may regard them as a family. They may never have felt the need to marry or enter a civil partnership.

If one of them dies without a Will, the surviving partner may assume they will be able to deal with the estate because that is what both of them would have wanted, and because they had been together for a long time. However, if they were not married or in a civil partnership, the surviving partner has no automatic right to inherit under the intestacy rules.

Unmarried partners do not automatically inherit, regardless of how long they were together.

If there is no valid Will, the law decides who receives the estate. That may not be the person the deceased would have chosen.

In some circumstances, a surviving unmarried partner may be able to bring a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, but that is not the same as having an automatic entitlement. It can involve uncertainty, cost and delay at an already difficult time.

Myth 3: I am married, everything goes to my spouse, so I do not need a Will

Marriage or civil partnership gives a spouse or civil partner important rights, but it does not always mean they will inherit everything.

If someone dies without a valid Will, the intestacy rules apply. Where there are children, the surviving spouse or civil partner may receive the personal possessions, a statutory legacy and part of the remaining estate, with the children receiving the balance. This may not reflect what the deceased intended.

A Will can also deal with matters that the intestacy rules do not address properly, such as:

Appointing guardians for minor children.
Making specific gifts.
Protecting vulnerable beneficiaries.
Making provision for children from a previous relationship.
Dealing with business interests.
Making provision for unmarried partners or stepchildren.
Choosing who should administer the estate.

A Will allows you to make your wishes clear, rather than leaving the outcome to a statutory formula.

Myth 4: We have told the family what we want, so that is enough

Many people have conversations with family about what they would want to happen. Those conversations can be helpful. They can also be kind and thoughtful.

However, they are not legally binding.

The law does not automatically follow verbal wishes, text messages, family assumptions or what everyone knows you would have wanted. A Will puts those wishes into a legally recognised form.

Open conversations are useful, but they do not replace properly prepared and correctly signed legal documents.

Myth 5: My family situation is simple, so I do not need a Will

Complications do not always come from money. They often come from people. Legal planning is not just for large or complicated estates. It is for anyone who wants the right people to have the right authority at the right time.

A modest estate can still become difficult if the legal documents are missing, unclear or out of date. A second marriage, children from a previous relationship, an unmarried partner, stepchildren, family estrangement, a vulnerable beneficiary, a jointly owned home, a family business or relatives who do not agree can all create uncertainty.

Stepchildren, for example, do not automatically inherit under the intestacy rules unless they have been legally adopted. A jointly owned home may also pass differently depending on whether it is owned as joint tenants or tenants in common.

A clear Will can reduce uncertainty and reduce the risk of avoidable disputes after death.

Myth 6: A homemade Will is just as valid

Sometimes a homemade Will may do the job intended. Sometimes it will not and can cause problems.

A Will must meet strict legal requirements. It must be in writing, properly signed and witnessed by two witnesses who are both present at the same time. The person making the Will must have the necessary mental capacity, must understand and approve the contents of the Will, and must not be acting under undue influence.

Small mistakes can make a big difference. Using an inappropriate witness, failing to deal with jointly owned property, leaving out replacement beneficiaries, using unclear wording or assuming that marriage and divorce have no effect can all lead to difficulties later.

A beneficiary, or the spouse or civil partner of a beneficiary, should not witness a Will. If they do, the Will may still be valid, but the gift to that beneficiary may fail.

Using a professional to draft your Will can help ensure the Will is valid, clear and suitable for your circumstances. It can also reduce the risk of disputes or contentious probate later.

Myth 7: My Will covers everything I own

A Will is extremely important, but it does not always control every asset you leave behind.

Some assets may pass outside your Will. For example, a property owned as joint tenants will usually pass automatically to the surviving joint owner, regardless of what your Will says. Certain pensions, death-in-service benefits and life policies may also be dealt with separately, particularly where trustees have discretion or where the policy has been written in trust.

That means a Will should not be looked at in isolation. It is also important to consider how property is owned, whether pension nominations are up to date, and whether any assets are held jointly or in trust.

Myth 8: My children’s godparents would automatically look after them

Many parents choose godparents or have close family members in mind if anything were to happen to them. However, being a godparent does not automatically give someone legal responsibility for a child.

A Will can be used to appoint guardians for children under 18. This allows parents to make clear who they would want to care for their children if both parents were no longer able to do so.

Without a guardian appointment, families may be left trying to work out what should happen at an already distressing time. If relatives disagree, the decision may become more complicated.

If you have children under 18, a Will is not just about money and property. It is also a way to make clear who you would trust to care for your children.

Myth 9: My stepchildren will be treated the same as my children

Family life does not always match the legal rules.

A person may have raised a stepchild for many years and regard them as their own. However, under the intestacy rules, stepchildren do not automatically inherit unless they have been legally adopted.

This can cause real unfairness in blended families. A stepchild who was loved and supported throughout life may receive nothing if there is no valid Will, while the estate passes under the statutory rules to other relatives.

If you want to provide for stepchildren, unmarried partners or other people who are not automatically recognised under the intestacy rules, those wishes should be clearly set out in a valid Will.

Common myths about LPAs

Myth 10: My executor can deal with things if I lose capacity

A Lasting Power of Attorney allows you to choose people you trust to help make decisions if support is needed, or if you lose mental capacity in the future.

This is different from naming an executor in a Will. An executor acts after death. An attorney acts during your lifetime.

That distinction matters. Your executor cannot manage your bank account, pay your bills, sell your property or make care-related decisions while you are alive simply because they are named in your Will.

If you want someone to manage decisions during your lifetime, you need a valid Lasting Power of Attorney, not just a Will.

Myth 11: My next of kin can make decisions for me

Next of kin sounds official. In practice, it is often much less powerful than people think.

There is a common misconception that next of kin has automatic legal authority. Families may assume that, because everyone knows what the person would have wanted, there will be no problem.

Being someone’s next of kin does not automatically give a spouse, partner, child or parent the right to access bank accounts, manage property, pay bills, speak to financial institutions or make health and care decisions.

Hospitals and care providers may consult close family members, but that is not the same as having legal decision-making authority.

Without an LPA in place, an application to the Court of Protection may be needed before someone can be formally appointed to manage financial affairs. Health and welfare decisions may also become more difficult, particularly if there is disagreement about what is in the person’s best interests. This can be slower, more expensive and more restrictive than putting an LPA in place in advance.

Myth 12: One LPA covers everything

In England and Wales, there are two types of Lasting Power of Attorney.

A Property and Financial Affairs LPA can cover decisions about bank accounts, bills, pensions, investments and property. Once registered, it can be used while the person making the LPA still has mental capacity, if they consent, or after capacity has been lost.

A Health and Welfare LPA can cover decisions about medical treatment, care arrangements, daily routine and, if expressly authorised, life-sustaining treatment. It can only be used when the person making the LPA lacks mental capacity to make the relevant health or welfare decision.

The two LPAs do not do the same job. Both must be registered with the Office of the Public Guardian before they can be used.

It is therefore important to understand which authority is needed, what decisions it covers and when it can be relied upon.

Busting the myths before they cause problems

A Will says what should happen after death. An LPA says who can help during your lifetime if decisions need to be made.

The best time to put them in place is usually before they are needed, because by the time they are urgently needed, it may already be too late.

Putting both in place can give families clearer instructions, stronger legal authority and fewer avoidable problems at a difficult time.

Even once a Will or LPA is in place, it should not be forgotten. Life changes. Marriage, civil partnership, divorce, children, bereavement, property changes, business changes and family disputes can all affect whether your documents still work as intended.

Regular reviews help ensure that your Will and LPAs continue to reflect your wishes and your family circumstances.

Need to prepare your Will or LPA?

HRJ Foreman Laws Solicitors can assist with preparing, reviewing and updating Wills and Lasting Powers of Attorney to ensure the right people have the right authority when it matters most.

For more information

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