Five new year's legal resolutions (for private clients)

The New Year is prime time for making resolutions, and here are our top picks for getting your personal affairs in order:

1. Will power!

Of course, will power is required to stick to your New Year's resolutions, but in this context we mean that putting a will in place is incredibly important. A will gives you the power to direct who should benefit from your estate on your death, and who should be responsible for administering your estate. If you die without a will, then the default laws of intestacy will apply and may mean that your estate is divided not how you would wish (or expect). In addition, not having a will is likely to cause delays and additional expense in dealing with your estate. Scotland has unique 'legal rights' (a form of forced heirship provisions that apply to spouses/civil partners and children) which you should seek appropriate advice on when instructing your will. If you already have a will in place, you should review it every few years to ensure it reflects your current wishes and circumstances – perhaps that should be this year?

2. You've got the power (of attorney)!

It is a common misconception that your spouse / partner or 'next of kin' would automatically have the right to deal with your affairs should you be unable to deal with such yourself – but a power of attorney (POA) is required to give such rights to those who you would want to act on your behalf in the event of a loss of capacity. We recommend that everyone puts a POA in place, regardless of age or circumstances – no one knows what the year ahead has in store for us. You are then in control of who you appoint to act as your attorney(s), and also the extent of the powers that you give them, which would ordinarily include powers to deal with your financial and welfare matters. If you were to lose capacity without a POA in place, then an application to the court would be required for a 'guardianship order', which is often a protracted, expensive, public and cumbersome process.

3. Safeguard(ian) your children

Make provision for who you would want to look after your children if something were to happen to you. You can appoint guardians for your children within your will or in a standalone document. This could save family wrangling and potential protracted court action to resolve matters.

4. Death/pension benefits

Ensure your nomination forms for life assurance, pensions, death in service etc are up to date and reflect your current wishes. Otherwise, the payments may not go to those you want (or expect) them to go to.

5. Talk about it!

Discussing ill health/death and the implications of it – care, funerals, money – can be uncomfortable. However, knowing and making clear what you want beforehand can make hard decisions easier for your loved ones. Difficult life events can be made smoother with early planning and professional advice.

This is not an exhaustive list and your circumstances may require bespoke advice. Please get in touch with the Personal team at Brodies if we can be of assistance.