Estate Planning Over 80 UK (2026): The Checklist for Anyone Who Hasn't Done It Yet

Estate planning becomes increasingly urgent in the 80s because the window to act on certain key tasks, particularly making or updating an LPA and updating a will, can close permanently and without warning: (1) MENTAL CAPACITY IS NOT GUARANTEED: the risk of a sudden incapacity event (stroke; fall causing severe head injury; rapid dementia progression) is materially higher in the 80s than at 70. Unlike selling a house or writing a letter, making an LPA and making a valid will both require 'mental capacity' in the legal sense, the ability to understand what is being done and its consequences (Mental Capacity Act 2005 s.3; Wills Act 1837 + Banks v Goodfellow (1870)). Once capacity is lost for these purposes, you cannot make an LPA or a valid will, the options available immediately narrow and become dramatically more expensive and complicated; (2) THE GOLDEN RULE IS NOW URGENTLY RELEVANT: when a will is made by a person in their 80s, the 'golden rule' from Kenward v Adams [1975] applies with full force, the solicitor (or any professional helping with the will) should ensure a contemporaneous assessment of mental capacity by a medical practitioner and have that person witness the will. Without this, the will is more vulnerable to a post-probate challenge. From a planning perspective, it means: make or update your will now, while capacity is clearly present; ensure the process is properly documented; (3) LPA TIMESCALES ARE A REAL RISK FACTOR: an LPA application to the Office of the Public Guardian (OPG) currently takes 8-20 weeks to register after it is submitted. This is the minimum. For someone in their 80s, a medical event in those 8-20 weeks could result in: the application being made but capacity having been lost before registration, making the LPA unusable; or the need to cancel the LPA application and begin an expensive deputyship application instead. Start your LPA application now, do not wait; (4) PENSIONS, URGENT ACTION BEFORE APRIL 2027: from April 2027, unused defined contribution (DC) pension funds on death will be brought into the IHT estate (Finance Act 2024). For anyone in their 80s with DC pension savings, this is urgent: review your 'expression of wishes' (nomination form) with the pension scheme immediately; understand the IHT position your pension pot will now create; consider drawdown planning to use pension funds during lifetime (reducing the IHT exposure); the existing IHT nil-rate band (£325,000) and residence nil-rate band (up to £175,000) may already be fully used by the rest of the estate, an additional pension pot could create a very significant IHT bill for beneficiaries; (5) CARE MAY BE IMMINENT: estate planning and care planning cannot be separated in the 80s. An IPDI (immediate post-death interest) life interest trust in a will protects the family home from a surviving spouse's future care home means test. An LPA protects the family's ability to manage finances if care is needed. NHS Continuing Healthcare assessment may already be relevant if health needs are complex.

If a person in their 80s has lost mental capacity without a registered LPA and without a valid will, the family faces two separate problems that each require a different (and expensive) legal route: (1) NO LPA, THE DEPUTYSHIP PROBLEM: without a registered LPA, no one has legal authority to manage the person's finances, sell their home, or make care decisions on their behalf. The only option is a Court of Protection deputyship application (Mental Capacity Act 2005 ss.16-18): (a) Application form COP1; medical evidence of incapacity COP3; (b) Court fees: £371 application fee + £494 assessment fee + £234 order fee = minimum £1,099 in court fees alone; (c) Solicitor fees: typically £1,500-£4,000+ for the application; (d) Timescale: 6-18 months for the order to be made, during which time: bank accounts may be effectively frozen (though banks have vulnerability procedures); property cannot be sold; HMRC correspondence cannot be responded to with full authority; (e) Ongoing deputy requirements: annual report to OPG; surety bond (insurance) at approximately 0.25-0.35% of supervised assets per year; supervision fees £320/year; major transactions (selling property) require separate Court approval; (f) Total cost over the person's remaining lifetime: very often £10,000-50,000+, depending on estate complexity and length of deputyship. Compare this to the £164 in OPG registration fees for both LPAs made in advance; (2) NO WILL, THE STATUTORY WILL AND INTESTACY PROBLEM: if the person has no valid will and has lost capacity: (a) On their death, their estate passes by intestacy (AEA 1925 ss.46-47), which may not reflect their wishes; (b) If they still retain testamentary capacity (the test for making a will is different from, and may be lower than, the day-to-day capacity they lack for other purposes), a solicitor should urgently assess this and assist them to make a will while they can; (c) If testamentary capacity is also gone, the Court of Protection can make a 'statutory will' on their behalf under MCA 2005 ss.18/22-23. This requires: a COP application (separate from the deputyship, though often combined); evidence of incapacity; evidence of what the person would have wanted; a hearing; court fees and solicitor fees of approximately £5,000-15,000+; 6-12+ months; (d) The statutory will must be approved by the court and formally executed by the Court on the person's behalf; (3) WHAT TO DO IF PARTIAL CAPACITY REMAINS: if the person has reduced but not completely lost capacity, lucid periods; ability to understand in a good moment, it is still possible to make an LPA and a will. The test for each is specific to that decision. A solicitor experienced in mental capacity (particularly under the MCA 2005) can assess whether sufficient capacity exists at a particular moment and ensure the process is properly documented. Even mild dementia or early cognitive decline does not automatically prevent a valid LPA or will.

The Finance Act 2024 changed the IHT treatment of pension funds on death, with effect from April 2027. For anyone in their 80s with a defined contribution pension, this is one of the most urgent planning points of 2026: (1) WHAT IS CHANGING: currently (to March 2027): unused DC pension funds on death generally fall outside the IHT estate. They are paid out by the pension scheme according to the member's 'expression of wishes' (nomination form) and the scheme trustees' discretion, to anyone, including non-family members, free of IHT. From April 2027: unused DC pension funds will be brought within the IHT estate. The executor must include the pension fund value in the IHT calculation (IHT400). IHT at 40% will apply on the pension fund above the available nil-rate band threshold; (2) WHY THIS IS ACUTE FOR OVER-80s: many people in their 80s have DC pension pots that they never drew down, either because they had other income (State Pension; final salary DB pension; investment income; rental income) or because they intended to leave the pension pot to family. Under the post-April 2027 rules, a £200,000 DC pension pot that was previously IHT-free now attracts 40% IHT on the portion above the available nil-rate band, potentially £80,000 in additional IHT (if the nil-rate band is fully used by the rest of the estate). Income tax on drawdown by the beneficiary applies in addition in some cases; (3) IMMEDIATE ACTION, REVIEW EXPRESSION OF WISHES: the expression of wishes / nomination form on file with the pension scheme is now critical for IHT planning purposes. Although the scheme trustees are not legally bound to follow it (the scheme retains discretion, which is what kept the pension outside the estate for decades), the nomination directly influences what happens. Review and update the nomination to: name specific beneficiaries (rather than 'estate' or leaving it blank, nomination directly to the estate is the worst option); consider the IHT position of different beneficiaries (a surviving spouse: spouse exemption; charities: charitable exemption); consider taking advice on whether to draw down more of the pension before April 2027; (4) DRAWDOWN STRATEGY: a financial adviser can model the relative tax efficiency of: drawing the pension down during lifetime and spending it, giving it away (PETs to family), or placing it in a trust; leaving it in the pension and paying IHT at 40% on death. For some individuals, drawing down the pension and making annual exempt transfers or larger PETs now may significantly reduce the overall family tax bill; (5) INTERACTION WITH RNRB: the Residence Nil-Rate Band (RNRB) of up to £175,000 (2025-26) only applies where the residential property passes to direct descendants. The pension change means estates which previously would have used the full RNRB against property may now find that the pension fund pushes the total estate into a higher band, reducing the effective benefit of the RNRB.

Yes, in most cases, an existing will made in earlier decades needs to be reviewed and almost certainly updated for someone now in their 80s. Here is why: (1) LIFE HAS CHANGED SINCE THE WILL WAS MADE: an existing will may predate: the birth of grandchildren (who should now be included or considered); the death of named beneficiaries (creating lapse and partial intestacy); the death of named executors (creating an administration crisis, who applies for the grant?); second marriages (which REVOKE any prior will in England and Wales, Wills Act 1837 s.18, unless the will was made 'in contemplation of marriage'); divorce (removes the former spouse as beneficiary and executor, but does not revoke the will, Wills Act 1837 s.18A); significant changes in asset composition (particularly pension funds, if planning has not been updated); (2) THE RNRB, DOES YOUR WILL MAKE USE OF IT: the Residence Nil-Rate Band (£175,000 in 2025-26) is one of the most valuable IHT reliefs available, but it only applies where the deceased's residential property passes to 'direct descendants' (children, stepchildren, grandchildren, adopted children). An older will that: passes the property via a discretionary trust; passes the property to a sibling or friend; contains a wide class of residuary beneficiaries without specifically directing residential property to descendants, may fail to trigger the RNRB, wasting up to £70,000 in IHT savings per person (or £140,000 for a married couple). Review the will against the current RNRB rules immediately; (3) MIRROR WILL PROBLEM, REVIEW AFTER FIRST DEATH: if a couple made mirror wills, the survivor can change their will after the first death, there is no contractual obligation to maintain the mirror unless the wills are 'mutual wills' (a specific and rare legal concept). If a surviving spouse is now in their 80s with an old mirror will, they should consider: whether the current will still reflects their intentions; whether the first death created any trusts that need to be accounted for; whether the RNRB position is optimal; (4) CODICIL VS FULL REWRITE: for minor changes (updating executor; adding a specific gift; changing a charity name), a codicil is sufficient. For substantive changes (new trusts; changing beneficiaries; updating for pension IHT changes), a full new will is cleaner and less vulnerable to challenge than a string of codicils; (5) DOCUMENTING CAPACITY AT THE TIME OF THE UPDATE: as noted in FAQ 1 above, for someone in their 80s, getting a contemporaneous capacity assessment (even just a GP letter confirming the person had capacity at the time of the signing appointment) is prudent and significantly reduces the risk of a post-probate challenge.

Beyond wills and LPAs, there are several practical steps that are specifically relevant to estate and care planning in the 80s: (1) ATTENDANCE ALLOWANCE, CLAIM IT NOW: Attendance Allowance (AA) is a non-means-tested, non-taxable benefit for people aged 65+ who have a disability or health condition requiring assistance with personal care: Higher rate: £108.55/week (2025-26) for those needing help during the day AND night, or who have a terminal illness. Lower rate: £72.65/week for those needing help during the day OR night. AA is often unclaimed, many over-80s qualify but have never applied. It is ignored in the care home means test (not counted as income). Claiming AA before entering a care home locks in entitlement; it continues for the first 4 weeks of care home residence, and indefinitely if the care home is NHS Continuing Healthcare-funded; (2) NHS CONTINUING HEALTHCARE ASSESSMENT: for those with substantial health needs, CHC provides 100% NHS funding for care, with no means test. It is commonly refused at the first assessment but successfully claimed on challenge. Anyone in their 80s with complex conditions (advanced dementia; severe stroke; MND; terminal cancer) should request a CHC checklist assessment from their GP or the NHS Integrated Care Board; (3) ADVANCE DECISION TO REFUSE TREATMENT: an advance decision (AD) under MCA 2005 ss.24-26 allows a person with capacity to specify, in writing, which medical treatments they refuse in specific future circumstances (including life-sustaining treatment if the correct formalities are met). Key requirements: in writing (MCA 2005 s.24(1)); signed and witnessed (MCA 2005 s.25(6)) if it relates to life-sustaining treatment; copies to GP, hospital, and the person's LPA attorney; (4) UPDATING PENSION NOMINATIONS: as discussed in FAQ 3, update DC pension expression of wishes before April 2027; (5) FUNERAL PLANNING: a prepaid funeral plan (administered under the Funeral Planning Authority regulatory framework from July 2022 and now FCA-regulated) can pay for the funeral in advance, protect against price increases, and relieve the family of an immediate financial burden after death. The cost of the plan is not an estate asset, it is not means-tested for care purposes; (6) DIGITAL LEGACY: ensure a trusted person (or the LPA attorney) knows: where important documents are stored (will; LPA; bank details; pension documents; premium bonds); what online accounts exist (bank; email; investment platforms; subscription services); Apple/Google Legacy Contact settings. For a comprehensive checklist, see the WillSafe UK estate planning checklist.