Wills, Powers of Attorney and future planning – how to manage your own or a loved one’s affairs smoothly
When posed with this question, the answer that came to mind was hopefully to “take good legal advice immediately”.
The Private Client Department at Macleod & MacCallum is the place to obtain that good legal advice, with the team providing a range of advice and services to help clients and their families manage these important matters in a sensitive and straight forward as possible manner.
Wills
These future planning discussions will often start with exploring clients’ wishes of what they want to happen to their belongings and other assets when they pass away, which we would set out in a Will. A well drafted Will provides you with the comfort that you are leaving clear instructions on your wishes, particularly if your own circumstances are perhaps not that straight forward or conventional.
The modern family dynamic has shifted over the generations and sometimes our lives become a bit more complicated over time – taking advice on your own circumstances will mean you can plan and avoid potential pitfalls which may occur when an individual passes away without leaving a Will. However, most adults (and indeed their loved ones) would benefit from them having a Will, even if they believe their own affairs are quite simple.
People often ask why they would have a Will and the simple answer would be to afford you some control in terms of your affairs. If you pass away without leaving a Will, the law sets out how your assets will be divided – this primarily favours spouses and children (or parents and siblings if you do not leave a spouse or children / grandchildren), before moving on to more remote family.
There is no automatic provision for a partner that you live with that you are not married to. If you pass away without a Will, a partner that you live with can make an application to the Court for provision for your estate, although this requires to be done within a short timeframe following your death and all that can be avoided if you choose to put in place a Will making provision for them.
When preparing a Will, it can often be a balancing act, setting out your instructions against the background of what can sometimes be a challenging family dynamic. We can offer advice in these situations on potential claims or challenges that estranged members of the family may look to make.
Powers of Attorney
We also provide advice on Powers of Attorney, which allow us to appoint one or more of (typically) close family or friends to have authority to act on our behalf if we are unable to for any reason, i.e., if we lose capacity at some point in the future or are in an accident.
There is perhaps a misconception that Powers of Attorney are aimed primarily at older generations, and whilst there may be more chance of us losing capacity as we advance in years, unfortunately we see this happen across a spectrum of ages, for different reasons.
Incapacity can strike at any time and often out of the blue. Powers of Attorney are not just for our older clients – clients with business interests and other more complex affairs, would typically benefit from having a Power of Attorney in place – without one, there can be no-one to step in and potentially run a business, for example – particularly in cases of a sole director / shareholder businesses.
It is often the case that clients believe that if they are married or have been in a long-term relationship, then their spouse / partner or other members of the family would automatically be able to make decisions for them if they lost capacity and were unable to make their own decisions. Unfortunately, this is not the case. If we lose capacity, there is no-one with automatic authority to step in and manage our affairs, whether that be in relation to property / financial matters or more personal decisions such as medical treatment, care and accommodation. You can safeguard against that by putting in place a Power of Attorney document, which allows you an opportunity to think about who would be best placed to manage your affairs if you were unable to yourself.
We can assist with the drafting, finalisation, and registration of Powers of Attorney on your behalf and aim to make the process as seamless as possible.
Tax and gifting
Where necessary, we are also able to provide advice on Inheritance Tax planning, often in conjunction with Tweed Wealth Management and our clients’ other trusted advisers.
Clients also seek advice on passing wealth down the generations and gifting to their children, often in the form of deposits for first properties or other ventures. Such gifts can have tax implications and we work with accountants, tax advisers and financial advisers on these matters, where appropriate.
Guardianships
We also assist clients where a loved one has perhaps lost capacity and has not already put in place a Power of Attorney, and we can assist with applying to the Court for a Guardianship Order in those cases.
Executries
Where a loved one has passed away, we are able to help deal with their affairs and the administration of what is known as the “executry”.
We can assist whether or not your loved one has left a Will. Generally, that will involve an application to the local Sheriff Court for what is known as “Confirmation” (the Scottish equivalent of what you may have heard called “Probate” elsewhere).
Where reporting is required to HMRC, we can complete the relevant Inheritance Tax form and schedules and arrange payment of that from the estate, where applicable. Once Confirmation is obtained, this gives the executors the authority to deal with the assets held and we can then act and deal with the transfer or sale of any property, business or other assets on behalf of the executors.
In summary, our Private Client team would be pleased to assist with any of the foregoing matters. Please feel free to contact us if you feel you or a loved one would benefit from some advice on the topics touched on here.
