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Writer's pictureSasha Curin

The Importance of Having a Will and Enduring Power of Attorney (EPA)

Recently, we had a valuable conversation with a lawyer who is currently navigating a complex situation involving a client who owned several limited liability companies. The client was the sole director and shareholder but, unfortunately, had not put a written Will or Enduring Power of Attorney (EPA) in place. This has created significant challenges for the business and the client’s estate, highlighting how important it is for company owners—especially those in sole control—to have proper legal documents in place to protect their interests and ensure continuity in the event of incapacity or passing. It's a reminder of how vital it is to plan ahead!


Here are some of the challenges that resulted:


1. Business Uncertainty and Potential Closure

  • No appointed successor: If you don't have a Will, there's no clear indication of who will inherit your shares in the company. This can cause disputes or delays in determining ownership, which may destabilise the business.

  • Business operations may halt: Without an appointed director, the company's operations could be paused, as no one is authorised to make key decisions. Banks, clients, and other stakeholders might freeze dealings with the company until a new director is appointed.

  • Risk of liquidation: If no immediate arrangements are in place, the company may be forced into administration or liquidation due to lack of leadership or confusion over ownership and management.


2. Complications in Managing Business Affairs

  • Lack of authority to make decisions: If you become incapacitated or die without an EPA or Will, no one has the legal authority to manage your personal or business assets. This can lead to delays in crucial business decisions, payments, or dealing with creditors.

  • Loss of control over the company: If a dispute arises about your shareholding or directorship, the company might be placed under temporary receivership or other legal management.


3. Potential Disputes Among Heirs and Stakeholders

  • Family disputes: Without a Will, the division of your personal and business assets is left to the laws of intestacy, which may not align with your wishes. This can lead to family conflicts over who should inherit and manage the company.

  • Shareholder conflicts: If shares pass to multiple beneficiaries, they might not agree on how to manage the company. This can lead to infighting, mismanagement, or forced sales of shares.


4. Delays in Estate Administration

  • Probate delays: If you die intestate (without a Will), the process of appointing an administrator for your estate (including your business interests) can take much longer than if you had a Will. This delay can harm the continuity of business operations.

  • Increased legal costs: Settling your estate without a Will often requires more legal work, which can result in considerably higher costs. Your business could suffer financially as these legal issues are worked out.


5. Tax Consequences

  • Unfavourable tax outcomes: A lack of clear estate planning, especially with respect to your business shares, may lead to increased estate taxes or capital gains taxes for your beneficiaries.

  • Missed tax-saving opportunities: Wills and EPAs can be structured in a way that minimises taxes for your estate and beneficiaries. Without these documents, those opportunities may be lost.


6. Inability to Appoint a Trusted Person in Case of Incapacity

  • No EPA means no control: Without an Enduring Power of Attorney, if you become incapacitated, no one has the legal authority to manage your affairs, including your business. The court may have to appoint a guardian, who may not be someone you trust to handle your business effectively.

  • Delays in business decisions: During your incapacity, important business decisions may be delayed or mismanaged due to the lack of a legally empowered representative.


7. Loss of Confidentiality and Control

  • Public legal processes: Without a Will or EPA, decisions about your estate or incapacity will likely be made through public legal processes. This can expose sensitive business and financial matters to public scrutiny and erode confidentiality.

Not having a Will and EPA as a sole company director and shareholder risks business instabilityfamily conflictsdelays in managing your estate, and higher costs for both the business and personal assets. Careful estate and succession planning helps ensure business continuity, minimises legal disputes, and protects your wealth for the benefit of your heirs.


If you’d like to discuss this further, feel free to reach out—we're here to help.


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