Published on: 15th March 2021

The most common Estate Planning Mistakes

Estate Planning can be a complex subject and with so much information available on the internet from a range of sources (some more valid than others), there are a number of Estate Planning mistakes that individuals may make which can have serious consequences for their beneficiaries. In this article we aim to give some insight into the most common Estate Planning mistakes we see and the steps you can take to avoid them.

Not having a Will

We start with probably the most common Estate Planning mistake - Not having a valid Will in place. This is the only way to be certain your assets will be distributed how you wish. Research shows as many as 54% of UK adults do not have a Will. By not having a Will, not only do you risk your assets not being distributed as you wish, but if you have children under the age of 18, you are ultimately leaving the decision of who looks after your children to social services.

Not reviewing a Will

Not regularly reviewing a Will is another Estate Planning mistake we see many people make. The personal circumstances of an individual can change frequently and as they change your Will should be amended as appropriate. The four major triggers for amending a Will are:

Marriage or divorce
Buying a house
Having children
When a beneficiary pre-deceases the testator

In any of these situations you should be reviewing your Will. Here at Casey & Associates we offer a free, no obligation, review of your circumstances and your Will if you have one. We contact existing clients every three years ~ it is part of the personal service we offer our valued clients.

Executors not knowing where a Will is stored

We have discussed the importance of Will storage in previous articles, but of fundamental importance is Executors of a Will knowing where a Will is stored. If it is not known where the most recent Will is stored a search will need to be carried out to find the Will which can take time and cause stress for the family at what is already an extremely difficult time. If no Will is subsequently found, your Estate will pass according to the Laws of Intestacy. If a previous out of date Will is found then this would be used instead, which could be a real problem if personal circumstances have changed dramatically.

Witnesses to the signing of your Will

A witness to your Will (or their spouse) cannot inherit from you. Always make sure that your witnesses are not related to you.

Not registering LPA documents

Lasting Power of Attorney (LPA) documents are important as they give someone you trust the ability to make decisions on your behalf should you be unable to make these decisions for yourself. One common Estate Planning mistake we see is LPA documents not being registered. If this is the case and they are needed quickly, real problems can be caused as registering LPA documents at the Court of Protection takes around 9 to 13 weeks; which causes major challenges if LPA documents are needed as a matter of urgency.

In addition to this, we would also recommend going to the relevant financial institutions to make sure the LPA is registered on their system in advance. This could save multiple days when time could be really important, and also gives you the time to make sure these are registered properly. We would always suggest you know where the LPA is at all times to make sure it is always kept as a complete document as we have seen situations where pages have gone missing when the documents have been transferred between different departments within the same institution.

Not formalising a Trust

A Life Interest in Property Trust is commonly used by couples between first and second death to place the deceased’s share and interest in the property into trust, offering protection from Care Fees Assessment and Sideways Disinheritance. To offer the maximum protection, the trust needs to be formalised.

If the trust is not formalised, a worse care scenario could be that the share and interest in the property is deemed not to be in Trust, and could, therefore, be assessable for Care Fees Assessment.

A common Estate Planning mistake we see is the trust not being formalised.

Annotating a Will by hand

When attesting your Will and having it witnessed, it can sometimes happen that a mistake is made and the wrong person signs in the wrong place for example. If this does happen, we would strongly advise you do not annotate the Will by hand and instead obtain a new copy of the Will to sign. Although causing some inconvenience, cost and perhaps a slight delay, if you do not do this and this Will is the one that is used to obtain a Grant of Probate, it could excite the suspicion of the Probate Court and they may ask questions such as:

Did the Testator have mental capacity?
Was this annotated at a later date?
Was the amending procedure followed correctly?

To establish this, witnesses will need to sign an affidavit (if they are still alive that is) which takes time and adds costs.

To avoid this happening, our advice would always be to have your Will checked by a professional. Here at Casey & Associates, we store the Wills for the vast majority of our Clients and, most importantly, will check them for errors such as this when they are returned to us.

That a photocopied Will is ok

Many wrongly believe that a photocopy of a Will is ok. Normally the Probate Court will not accept the photocopy of a Will. In certain special circumstances they may but they may well require sworn affidavits explaining why the original cannot be produced. This ties in with our Will storage point earlier – we would strongly advise that anyone who has a Will knows where the original copy is stored, and that their Executors know this information as well.

If you are concerned you may be making any of these Estate Planning mistakes or would like Estate Planning advice then please get in touch with our friendly and helpful team by calling 01732 868190 or by filling in the form on our contact page.

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Our Covid-19 policy is now that if you wish to give instructions or require general information about our Wills, Lasting Powers of Attorney or Trusts then we will carry out a telephone or Zoom appointment. However, if you wish to give instructions to one of our Consultants and you feel that you can only do this at a Face to Face meeting we are offering, at our Consultant’s discretion, a limited number of Face to Face appointments in most of the areas we normally cover (subject to Government advice). To see the areas we normally cover please click here. To arrange an appointment please telephone 01732 868190 or click here.