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New Year To Do List - Will and Power of Attorney

New Year To Do List - Will and Power of Attorney

To do list:           

Prepare a Will                                 Tick                                      

Prepare a Power of Attorney     Tick

For most people preparing a Will and Power of Attorney are tasks that are on their never ending “to do” list and, for some, it is one task that continually gets pushed to the bottom of the list as day to day life takes over. 

No-one likes to contemplate their own death.  Preparing a Will is something that we should all consider.  Many people think it is something they should prepare when they are older or if they have significant assets.  Should you die intestate (without a will) the laws in Scotland will determine how your estate will be divided and this will not always be directed where you think!  The death of a loved one is a stressful time for all – any disagreements can be magnified at an already difficult time.  To avoid any additional stress on your surviving family members, and if any of the following apply, you should consider taking steps now to prepare a Will:

  • You have purchased your first home – if you own any significant asset who do you want to benefit from this on your death?
  • You are a co-habiting couple – if so, your significant other has no automatic right to your estate
  • You are a parent – guardianship provisions can be included within your Will setting out your wishes on who should look after your children
  • You are in a second relationship – your wishes will be followed on how your estate should be divided taking into account what you wish to leave to your spouse and any children from previous relationship
  • You are a step-parent – if so, step-children have no automatic right in your estate
  • You have a family member who lacks capacity or is a vulnerable adult – a will including Trust provisions will ensure your loved one may still benefit from your estate without leaving them funds directly
  • You have significant assets – if so, inheritance tax planning can be introduced within your Will

For those in complex family structures who anticipate there may be issues with funeral arrangements, you should also consider preparing an “arrangements on death declaration”.  This is a statement confirming who you wish to arrange your funeral on death.  This avoids any disputes between your surviving loved ones and gives clarity on your wishes. 

Everyone should have a Power of Attorney in place.  You do not require to have significant assets or be in older age to do this.  The Power of Attorney document is a legal document which sets out your wishes during your lifetime in the event you cannot make a decision yourself.  Any one of us could be in an accident or succumb to an illness at any time that means we can no longer make decisions relating to finances, property or our health and personal welfare.  To ensure the person (or persons) you wish to make decisions for you (in the event you cannot) has legal authority to act, a Power of Attorney can be put in place.  This is a simple and quick process.  The document does not come into effect until it is required (which may of course be never).  It is a protective document to safeguard you in the future.  In circumstances where you do not have a Power of Attorney and you require someone to step in (and have legal authority to act) on your behalf they will need to raise a court action.  A Sheriff will decide at a court hearing whether that person should be given power to make decisions for you.  This can be a particularly stressful time for your loved ones and, depending on where you live, can take anywhere between around 6 months to 24 months. 

Should you have any questions about granting a Will or Power of Attorney, preparing a Trust for vulnerable family members, inheritance tax planning, or making an arrangements on death declaration contact a member of our Private Client Team who will be happy to help.

Written by : Lynne Lind