News & Features — 22 September 2016 at 3:48 pm

Preparing for the Worst

Thomas Taylor / Director, Net Lawman

If you spend enough time in remote places, or doing the kind of activities that (we feel) make life worth living, then it is inevitable you will come across death at some stage. It might even be you who dies. We all will die at some point after all, but what happens if you die in the wilderness, or on expedition? How do you get home? What happens to your property? As medics, we are often pretty ignorant of legal matters, and we are notably bad at planning for our future. We asked climber and skier Thomas Taylor, Director of Net Lawman about preparing for the worst.

Scott's Party at the South Pole (WikiMedia Commons)

It is human nature not to want to consider in too much depth what would happen in the case of our own death. Yet, just as vaccinations are a standard part of preparing for a trip abroad, making sure that your money, possessions and life assurance payouts go to the people you want should be as well.

Your body

When you die, you no longer own your body. In theory, you cannot say what you would like to happen to it. In practice, most people leave wishes as to what should happen to their body in their will, that their family then usually follows.

Your body may be held by legally recognised authorities (such as the police) in the country in which you die so that they can carry out investigations into the cause of your death. Your family will also need to register your death in the country where you die in order to obtain a death certificate.

You should obtain an insurance policy that covers repatriation of your body (that is embalming it, buying a coffin and transporting it back to the UK). Otherwise, the cost of doing so, which might be great if you die in a remote place, must be borne by your family or by you.

Your will

Every adult should make a last will and testament. Doing so is the only way you can control who inherits your money and possessions.

If you haven’t made a will (in legal terms if you die intestate), then the law sets out the order in which people inherit your estate – that is what you own after any debts have been repaid. You can also still be sued for your negligence from while you were alive on the expedition. If the claim is successful, then it might create any further liabilities to be paid from your estate alongside any debts, depending on the terms of your professional indemnity policy.

It is important to be aware that some of the people you would assume the law would recognise as having an interest in your estate, do not by default. That is one reason why making a will is so important in looking after those you leave behind.

What makes up your estate?

Anything you own by yourself, such as jewellery belongs to you. Things that you own with someone else can be owned in two ways: either jointly or in specific proportions. Unless you have made an agreement that sets out the split of ownership, you own the things jointly.

The type of things that you might own with someone else, such as an unmarried partner, include real property, such as your home, and joint bank accounts or investments.

When you die, jointly owned assets pass automatically to the other owners. Your “share” does not form part of your estate. The implication is that because it is not part of your estate, you cannot nominate who receives it in your will. (Depressingly though, inheritance tax may still be payable on it.)

If you want to leave your share of a co-owned asset to someone who isn’t the other owner, you need to sever the joint tenancy and become tenants-in-common. Despite the legal jargon, the process is as simple as the joint owners stating in writing that they agree to do so, and recording the ownership shares.

Who has an interest in your estate?

Rules regarding intestacy set out who receives your estate if you haven’t made a will. There are two things of particular note.

Despite the law of intestacy being updated in 2014, unmarried partners are still not entitled to a share of your estate by default. There is no such thing as a common-law partner (including in Scotland, where before the Family Law (Scotland) Act 2006 was passed, cohabiting partners used to have some of the rights of married couples in certain circumstances).

So if you live with someone (regardless of the length of your relationship) but you are not married, the only way of making sure he or she inherits what you want them to is to make a will.

The other consideration is the default position if you are married and have children from earlier relationships. If you are married and have no children, then your wife or husband inherits all your estate. If you are married and have children, then your wife or husband is entitled to the first £250,000 of value in the estate, and half of the remainder. The other half of the remainder is split between your children, and they inherit it when they reach 18 years of age.

If you have children from earlier relationships, then this may not be what you want. Firstly, you may want a greater proportion of your estate to pass to them. Secondly, you cannot guarantee that your current spouse will leave any of his or her share of your estate to them. Particularly if he or she remarries, then your estate may be passed on to people you don’t know (his or her future spouse and their extended family), and not your own children. The only way you can be sure that your children benefit from your estate is to name them in your will.

Property ownership where the deeds are in one person’s name only

In unmarried relationships, one person might have bought a house using his or her savings as a deposit and taking a mortgage out in his or her name. The other person might, however, contribute to the mortgage and running costs.

In law, contributing to the mortgage does not give someone an automatic right to a share of ownership. The default position is that you are paying rent under a lodger arrangement.

To be entitled to a share of the property, you need to have an agreement in place (usually within a document called a cohabitation agreement) that states how your payments affect your relative ownership. It is not practical to update the deeds regularly to reflect this share (and in any case, the mortgage provider may not allow it), but an agreement will support your claim that you are entitled to the proceeds from a sale.

Life assurance payouts

The NHS Pension Scheme gives life assurance cover for death in membership, but to be eligible, you must be contributing to it at the time you die. It is likely that you will continue to do so if you are taking holiday, unpaid leave or authorised leave, but you should double check if you are out of contract or training or away for a long period.

The Scheme pays a lump sum (called a Death Gratuity) on your death. The amount depends on which Section of the Scheme you joined, but roughly equates to two years of pensionable pay.

You can nominate who receives this and no inheritance tax is payable on the amount.

It also pays a “short term” pension to your wife, husband or civil partner for six months. If you are unmarried, but have lived with someone for more than two years, you are usually able to nominate your unmarried partner to receive this pension.

If you have contributed to the pension scheme for more than two years, then a “long term” pension may also be payable after the six months. The amount depends on how much you have paid into the Scheme.

Additionally, an allowance might be paid to your children under 23 years of age if they are financially dependent on you.

Planning for the death is not difficult

Expeditions aside, all adults should ensure that what happens if they were to die unexpectedly is what they want to happen, whether or not they’re going to a remote place or staying at home. It is not difficult, nor expensive – just a little more personal administration.

An upcoming trip is as good a prompt as any to consider whether those you love would be looked after and possessions distributed as you would like should you die.

Making a will

A will is one of the only legal documents that is recognised across all the jurisdictions of the UK. A will written under English and Welsh law is just as valid in Scotland as if it were made under Scottish law. So if you are a Scottish or Northern Irish resident, you can use a (usually cheaper) English will writing service.

Be aware that to be legally valid, a will needs to be signed and witnessed in a particular way. If you just leave a signed letter setting out what you want to happen, it will not be legally valid and your wishes will not be followed. But making a will doesn’t have to be expensive. You don’t need to use a solicitor. If your situation is uncomplicated (an estate worth less than £325,000 and no assets abroad) then there are a number of suitable templates that you can download online. For example, our company, Net Lawman, offers free templates and online will writing software. We also offer an optional low-cost review service if you would then like to have your will checked by a qualified will writer.

Further reading

You can find out more about the two types of joint ownership: “joint tenancy” and “tenants in common” in this article.

You can also read more about the rights of cohabiting couples and using a cohabitation agreement.

The BMA provides a summary of NHS pensions and death in service that is easier to read around than the guidance provided directly by the NHS.

Photo: Captain Robert Falcon Scott’s Party at the South Pole, 17 January 1912 (WikiMedia Commons)