Estate Planning & Mental Capacity

Your Estate is made up of everything you own, whatever it may, wherever it may be, and whether it is owned in your own name or jointly with someone else.

• Your Estate will consist of 
• Your HOUSE and any other property that you might own and rent out.
• Money in your Bank account or savings or any investments held
• Any interest you may have in the shares of a company or any interest in a trust of which you may be a beneficiary, but this may depend on the wording of the trust deed.
• Any digital assets that you may own (please see our section on Wills for further information)

Do you need a Will?

If you do not have a Will, then you will die INTESTATE and your estate will pass according to the rules of intestacy. 

If you do not have any heirs, the ultimately, all your estate will be taken by the Government.

Also, in our experience, if you do not leave a Will and no-one knows what you own, then someone will have to take the time to investigate all your assets. It is possible, as has happened in a recent case, that not all of your assets are found. It is also possible for other individuals to steal an asset belonging to you and for it never to be recovered or identified.

The persons who will administer your estate after your death are called Executors and are named in your Will. They will have to apply for the court to give them permission to collate and take control of your assets. This permission is called PROBATE. If you die intestate, there is a similar process, but your ADMINISTRATORS will apply for LETTERS OF ADMINISTRATION. If you die without a Will, the law allows your relatives to apply for permission to deal with your estate. The law also provides a list of the relatives who will receive your estate. You will have no choice in this.

Practical Advice – Create a Folder with details of all your assets 

Before we prepare your Will, we highly recommend that you create a folder containing details of all your assets. We can also register and deposit your original Will with the Central Will Register so that there will always be a record of it. We also recommend that you update your asset folder every so often, in particular if you have purchased other large assets. A copy of it should also be provided by you to a trusted relative.

Lasting Powers of Attorney (LPA)

You can set up two types of Lasting Powers of Attorney – one for someone to make decisions about your health and the second about your finances. The LPA allows someone you trust to administer your assets for you if you lose mental capacity or to make health decisions on your behalf including decisions about resuscitation.  This documents are registered with the Supreme Court of Gibraltar.

Foreign Assets

If you have assets in a foreign country, then ideally (and depending on the law of that country) you should  have a Will in that country. If not, then your executors will have to seek authority to deal with your assets in that foreign country, which may make things a little more costly.

Please refer to the Wills section on the issue of your Digital Legacy.