All personnel entitled to make a Will are urged to do so. Anyone making a Will should be advised that if for any reason they later wish to change the distribution of their estate they should make a new Will. In addition, it may be desirable to make a Will (or a fresh Will) on any alteration of marital status or change of next-of-kin and that it is desirable to make a Will before proceeding overseas. If no Will is made the estate (including money, balance of pay and personal belongings) must be distributed in the event of death according to the laws of the country or domicile governing intestate estates, which may result in the estate having to be distributed in a way which the deceased would not have wished; the nomination of a next-of-kin does not take the place of a Will.
In exceptional circumstances, Service personnel, including those under 18 years of age, may be able to make informal unwitnessed Wills, usually during war time, but in the interests of their beneficiaries they should make a formal Will at the earliest opportunity. For those serving overseas, general advice on the making of a Will can be obtained from officers serving in the Army Legal Aid Units and RAF Legal Services but personnel should seek the aid of a UK solicitor for the drafting of a Will.
For safekeeping, Wills may be lodged with: the individual's bank or building society; a solicitor; the probate registry (via the local probate office) for a nominal fee of £1, with a member of the family or close friend; or the Wills Library in the Defence Handling Centre (DHC) Glasgow. Individuals who wish to store their Wills with DHC Glasgow or make a new or replacement Will, are to complete a Will form MOD Form 106 or a private Will Form and enclose it in a MOD Form 106A, Will Form envelope, prior to passing it to their HR Unit Admin staff. Unit HR staff will then annotate the individual's JPA record prior to sending the Will to to AFPAA (DHC) Glasgow. The DHC Glasgow will accept civilian-generated Wills but due to storage constraints all Wills are to be sent in the standardised pre-printed envelopes, MOD Form 106A, available from Unit HR Admin.
There is more guidance on making a Will on the Government website Gov.uk.
Inheritance Tax is the tax that is paid on your 'estate'. This is everything you own at the time of your death including property, possessions, money and investments. It's also sometimes payable on assets you may have given away during your lifetime as well (see below). If you have a property and any of the aforementioned assets, then specialist expert advice should be sought as the creation of certain trusts may be required to protect your beneficiary's inheritance.
Estates and lifetime gifts
If the taxable value of your estate when you die is above £325,000 (2013-2014 tax year) then you will be subject to Inheritance Tax which is only payable on the excess above this threshold. For example, if your estate is worth £350,000, then you will only pay Inheritance Tax on £25,000.
There are also a number of exemptions which allow you to pass on amounts (during your lifetime or in your will) without any Inheritance Tax owed, for example:
- if your estate passes to your husband, wife or civil partner and you are both domiciled in the UK, this passes automatically without incurring Inheritance tax even if it's above the £325,000 threshold
- most gifts made more than seven years before your death are exempt
- certain other gifts, such as wedding gifts and gifts in anticipation of a civil partnership up to £5,000 (depending on the relationship between the giver and the recipient), gifts to charity, and £3,000 given away each year are also exempt
Further advice on wills can be obtained from the Citizen's Advice Bureau or most solicitors; to find a solicitor near you, contact the Law Society:
0870 606 2555
Power of Attorney
Before 1 October 2007 the law only allowed you to appoint Attorneys to make decisions about your property and/or financial affairs by making an Enduring Power of Attorney. Since 1 October 2007 the Enduring Power of Attorney has been replaced by the Lasting Power of Attorney.
Lasting Power of Attorney (LPA)
A LPA is a legal document that you (the Donor) make using a special form. It allows you to choose someone now (the Attorney) that you trust to make decisions on your behalf about things such as your property and affairs or personal welfare at a time in the future when you no longer wish to make those decisions or you may lack the mental capacity to make those decisions yourself.
A LPA can only be used after it is registered with the Office of the Public Guardian
Who can make a Lasting Power of Attorney?
Anyone aged 18 or over, with the capacity to do so, can make a LPA appointing one or more Attorneys to make decisions on their behalf. You cannot make a LPA jointly with another person; each person must make his or her own LPA.
There are two different types of LPA:
The Personal Welfare Lasting Power of Attorney
A Personal Welfare Lasting Power of Attorney (LPA) allows you to plan ahead by choosing one or more people to make decisions on your behalf regarding your personal healthcare and welfare.
These personal welfare decisions can only be taken by somebody else when you lack the capacity to make them for yourself; for example if you are unconscious or because of the onset of a condition such as dementia.
The property and affairs Lasting Power of Attorney
A Property and Affairs Lasting Power of Attorney (LPA) allows you to plan ahead by choosing one or more people to make decisions on your behalf regarding your property and financial affairs.
You can appoint a property and affairs Attorney to manage your finances and property whilst you still have capacity as well as when you lack capacity. For example, it may be easier for you to give someone the power to carry out tasks such as paying your bills or collecting your benefits or other income.
You can obtain detailed guidance on LPA's in the guidance booklets section of their website.
What if I have an Enduring Power of Attorney?
The Mental Capacity Act replaces Enduring Powers of Attorney (EPA) with a new and different type of power of attorney called a Lasting Power of Attorney (LPA). This means that you cannot make any changes to an existing EPA or make a new one.
However if you have an unregistered EPA, it can still be used and your Attorney will still need to register it with the OPG if they have reason to believe you are, or are becoming, mentally incapable in the future.
You can also make a LPA to run alongside an EPA if you wish. For example you may have an existing EPA that makes provision for decisions about your property and affairs, and decide to make a Personal Welfare LPA to run alongside that, to provide for decisions concerning your healthcare and welfare.
You can download a registration pack from the registering a Lasting or Enduring Power of Attorney section of their website. This pack will contain all the forms and guidance you need to register an EPA.