Is a will required?

[Historygirl91]

Hi all. Just after a bit of advice please. My mum has some savings in her name only that she wants to protect from my dad if/when she passes away before he does.

For context my dad is a gambling addict (a different story there) and my mum wants to ensure that should she pass away first, he has enough to keep himself afloat - he has a state pension so would just need topping up we think - but does not want him to have access to her savings directly - around 40k. My mum wishes for his state pension to be topped up so he can afford to live, house is all paid off etc and they really don’t spend much money at all and haven’t done for years.

For context this money is inheritance that my mum received from my nana when she passed away about 10 years ago.

My mum has sought advice from a local solicitor who advised completing an LPA document to ensure that myself and my two sisters can protect her assets. The solicitor advised that she would not require a will.

This seems like strange advice to me, as as her next of kin my father would automatically receive her savings should she die, would he not? I’ve advised her to seek further legal advice but just wondered if anyone here had any guidance. Thank you.

Just recommend to her that she write a will. It's not complicated.

Sorry I'm not sure I understand. Do you mean she wants him to benefit from it but not have direct access to it? Or does she want it to go to her dc?

I’ve recommended a will and I think this is what she’ll do, we were just puzzled by the solicitors advice that she doesn’t need one, but as her wishes are quite specific I think she will need to do this.
She wants her DC to have control of the money but dish some out on a monthly basis to ensure my dad isn’t starving and destitute. It’s a bit complex but this is what she wants to do.
I have encouraged her to spend money on herself/the house to improve her standard of living but she won’t hear of it.

Yes she should have a will. Odd advice from the solicitor- possibly some miscommunication?

Are they married?

Yes they are

Can she just give you the money now to put in an account in your name?

Could your Mum open a joint savings account with either you or your sister?
I might be wrong but I think the money in a joint account would then go to the joint account holder upon her death.

It may have implications if either of you claim any state benefits but it might be worth exploring.

My mum has sought advice from a local solicitor who advised completing an LPA document to ensure that myself and my two sisters can protect her assets. The solicitor advised that she would not require a will.

This is bizarre. No competent solicitor would advise someone not to make a will under any circumstances - particularly if she wants to ensure some people rather than others inherit her assets.

Are you sure it was a solicitor as opposed to an unqualified person who provides "assistance"?

If she dies intestate then her husband will get the first £322k worth of her estate - if it is worth more than that then the remainder is split between her next closest blood relatives.

Therefore if she doesn’t want that then she MUST make a Will. Each of your parents should make a Will and doing LPA Is always a good idea to prevent difficulty later

Sound like she didn't understand what the solicitors said. However, a LPA is a very good idea. But she 100% has to make a will, or everything goes to her spouse.

It’s odd isn’t it. She said that it was a solicitor who has an office in our home town. I think there must have been some miscommunication along the way. Perhaps she interpreted their advice incorrectly.

An LPA only lasts until the person dies, then it ceases. Your DM definitely needs to complete a will, otherwise the laws of intestacy will see it all go to her spouse (if the estate is worth less than £322,000). If it's worth above that then the spouse gets the first £322,00 and half the remainder. The children will share the other half (based on the law of living in England and Wales).

https://www.gov.uk/inherits-someone-dies-without-will

An LPA dies with the person and so irrelevant to protect assets post death

A will is essential, it doesn't need to be written by a solicitor but in these circumstances it might be wise to get advice so it can't be contested. Also she needs to check house ownership - joint tenants or tenants in common

We did think of this but she is still only in her mid 60s. We think they realistically a lot of this money will be taken by care costs when she’s older anyway. She doesn’t like the idea of moving it around - not sure why she is just stubborn I think.

Even if the OP's mother writes a will if she dies before her father, her father can contest it.

Her mother can either:

1. Gift the money to her children now, or
2. More messily open a joint account with one or more the children.

On what grounds @Reugny ? Successful challenges of valid wills (testator in sound mind, meaning clear, signed and witnessed correctly) are vanishingly rare

Power of Attorney ends when your DM dies, so would think she definitely needs to make a will, otherwise everything would be left to your Father. I think your Solicitor is talking about whilst she is alive, where POA will help.

Yes, she definite needs a will. Probably it would include a discretionary trust to hold this cash, with daughters as trustees, so Father can be topped up as and when, and the daughters can later have any remainder. They involve quite a bit of admin for a relatively small amount, but would do the job.