Power of Attorney or will?

valleyboy22

Hi,

I am after some advice regarding a will etc if we are not married.

We are currently unsure what is best to do as we are together with a mortgage and i have a 22 year old son with another partner and two children with my current partner 18 and 7. if one of us in an unfortunate event dies, we want the mortgage/house to remain in the partners name. I have been told it goes to probate who ever half dies? We are both on a joint mortgage if that helps. Its more concerning that our 7 year old is autistic and if this is the case then we need to put something in place to prevent this.

I hope some of this makes sense sorry, but we need to think further ahead just encase.

Thank you

p00hsticks

You really need both - Power of Attorney (there are two types - Finance & Health) is for if one of you becomes incapacitated for any reason and will enable the other to handle their finances and make medical decisions on their behalf if they are unable to. A will determines what happens when you die.

An important piece of information you have not told us is whether the property is held as joint tenants or tenants in common ? If the former, the property automatically passes to the survivor. If the latter, it will pass to whoever is named in the will or, if no will, according to the intestacy laws , which varies between the UK countries but is likely to be your children.

Note that if you are leaving your property to an unmarried partner you only have an IHT allowance of £325k - if you were married there would be no IHT on the first death, and an allowance of up to £1m on the second if the house was left to the children.

Also note that any will becomes invalidate if you were to marry later, unless the will is specifically made 'in contemplation of marriage'

Keep_pedalling

You absolutely need both. You should also seriously think about your marital status as the surviving partner could be put in a difficult financial situation as without spousal exemption there could very much be a significant IHT liability to deal with on the first death. Marrying or forming a civil partnership would avoid that possibility.

Both wills should probable contain clauses that set up trusts so you should talk to a STEP solicitor who is qualified to advise on such matters and draft an appropriate wills. A trust is almost certainly appropriate for any inheritance your autistic child receives and an immediate post death interest trust is an almost certainly requirement for blended families. For the latter to be as tax efficient as possible again you need to be married of in a civil partnership.

Grey_Critic

Power of Attorney and a Will are two different things..

The POA is for when someone is unable to manage their own affairs - through illness or Alzheimer's/Dementia. It appoints a *Named Person* to manage your affairs. When you die then the POA ceases.

I am the Attorney (The term used for the person named) for my wife’s POA as she suffers from Alzheimer's with ours sons listed as reserves whilst our sons are mine. As one has a job that takes him all over the world of his brother is the first reserve.. I have twice had to use the POA for my wifes affairs and it was very easy.

You can do your own POAs (we were quoted £1100 by a solicitor) - you can download the forms and I would suggest doing so even if you decide not to use them - it is easier than trying to explain to someone online.

A Will sets out what you want to happen when you die. You really need some legal advice on how your will is worded so there can be no doubts.

You do not have to be married if you do not wish to do so but could consider registering a Civil Partnership which would give your wishes a Legal Standing.

gwynlas

Anything can happen at any time you both need wills and LPAs and consider who you would want as guardians of the children should you die together.

valleyboy22

https://forums.moneysavingexpert.com/discussion/comment/81983575#Comment_81983575

Thank you for the reply.

We are joint name on the mortgage and we have no plans to move if this helps.

RAS

You may both have be named on the mortgage but are you joint tenants or tenants in common? It costs £7 to get the registration direct from the Land Registry (assuming England or Wales).

This matters massively. If you are joint tenants and your partner died first, you become the sole tenant and vice versa. If you die first, your eldest son gets nothing when your partner dies. Everything would go to your current partner's children.

But if you or your partner chose to marry after the first death it's quite possible none of the children will get anything. There's a current thread where that has happened.

You are probably also handing your children a hefty IHT bill because you are both single.

So you both really, really need cast iron wills that protect your children from "remarriage", unnecessary care home and IHT bills. That means using a STEP solicitor not will writers.

With an under age child with autism, you also need to nominate trustees until they are 18 and to consider a Vulnerable Person's Trust which protects them from losing benefits, exploitation and a nasty tax regime. A STEP solicitor can advise.

POAs can be done on-line at a reasonable cost but not used until needed. As you aren't married, if either of you are unwell now the other has no say in your care nor can they access money.

If you don't do them, someone will have to apply for deputyship which takes ages, costs more than a good will and require expensive monitoring.

Albermarle

https://forums.moneysavingexpert.com/discussion/comment/81983872#Comment_81983872

As said in the previous post, it is how you own the property that is important.

The joint mortgage does not define that.

Grey_Critic

We can only suggest what you should do. I became involved in my ex-wife’s affairs when she died.

My daughter asked for help. Her mother had remarried and when her husband died she found he had changed their wills and basically she had been disinherited. NOT what he mother wanted.

I advised her to talk to a solicitor but *Her Friend Said* you don’t need to do so. She took notice of her friend and when her mother died there were major problems - after Four Years it was eventually sorted and she received £50k instead of in excess of £750,000.

Talk to a Solicitor and explain your fears - they will sort it. DO NOT LISTEN TO OTHER PEOPLE except when they point you in the direction of a Solicitor.

valleyboy22

https://forums.moneysavingexpert.com/discussion/comment/81984040#Comment_81984040

Have you a link to register please?

badger09

Google is your friend. Other search engines are available

Assuming property is in England or Wales:

https://www.gov.uk/government/organisations/land-registry