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2021 brings a new year of opportunity and a chance to reflect back on what a challenging year we have all faced in 2020. The uncertainty, the current impact on our health and care services as well as the impact on families across the world will be long remembered and felt going into the future.
2021 also offers a chance for us to consider the future and prioritise what matters to us most. At this time of year, we normally set out what New Year resolutions we hope to carry through for the rest of the year. Protecting you and your family’s future is perhaps not one resolution you would have usually considered – however, after the challenges of 2020 this seems to now be more important than ever.
Having a Will and Power of Attorney in place acts as a means of protecting our own interests during our lifetime and the interests of others we care about in the event of our passing.
Through a three-part series, we will look at the differences between a Will & Power of Attorney as well as why you should have a current up-to-date Will and Power of Attorney.
Why should I have a current, up-to-date, Will?
Now that we have considered the main differences between Wills and Powers of Attorney (in part 1). We will explore the reasons why it is important to have a current, up-to-date Will in place.
1.Financial Protection for Those Closest to You
Having a Will in place provides peace of mind that the interests of those you care about most are protected.
Having a Will drafted means you will be able to consider how your own estate should be divided and how this would benefit those close to you in the future. This is especially important for those with an interest in Property – for example, a 'Liferent clause' can be used to allow your spouse to benefit from the income or use of your property without taking outright ownership. This clause allows a spouse to benefit from the property in the event of their spouse’s death and allows the property to pass to others, most commonly, their children.
2.Deciding Who Will Administer Your Estate
When considering your Will, you will have the opportunity to decide who shall be the Executor of your own estate. An Executor of an estate is an individual appointed in a Will to administer the estate of the deceased person. Examples of the duties required of an Executor include:
accountability in ensuring all assets in the name of the deceased are collected into the estate;
responsible for settling any outstanding taxes and debts out of the deceased’s estate; and
overseeing the distribution of the deceased’s estate in accordance with the provisions of the Will.
The role of an Executor is an important one. An appointed Executor should be a trusted individual or individuals who you believe will carry out the instructions of your Will. It is strongly advisable that more than one Executor is appointed in a Will – this may be in the form of a “fall back” Executor where the original Executor cannot act due to death, incapacity or otherwise.
Without having a Will in place means that an Executor would be need to be appointed by the Court. This can come with a variety of complications and can often lead to disputes among family members when administering an estate without a Will.
3. Gifting Possessions and Cash Legacies
When drafting your Will, you will also be able to consider how you wish any items of sentimental value, family heirlooms, jewellery or antiques to be distributed. You will be able to state who should receive specific items as a way of providing clarity of your intentions and as a means of avoiding any disagreements among family members.
This is similar to any specific sums of money you may wish to leave to specific individuals or charities. You will be able to state how much of a cash legacy shall be left to an individual or charity of your choosing.
Having the ability to make clear in your Will how you wish possessions and cash legacies to be distributed allows you to be more proactive in protecting the interests of those closest to you.
4.Dealing with Your Digital Assets
An increasingly growing consideration when drafting a Will is determining what will happen to any digital assets owned by the individual making the Will; A digital asset is often considered to be a form of content owned by an individual stored in a non-physical form. This may include a range of digital or online accounts held by an individual such as a Facebook, Google, or PayPal account. Provision can be made in your Will to determine what should happen to these accounts on death and who should be provided access. Even when making provision for digital assets in your Will it would be beneficial to set out an additional inventory of all online digital assets you hold in order for an Executor to investigate all accounts and to ensure all assets are dealt with in accordance with the instructions in your Will.
5.Avoiding the uncertainty of not leaving a Will
The most important reason for having a Will in place is that it eliminates uncertainty and provides peace of mind.
Without having a valid Will means that a deceased’s estate is distributed in accordance with the rules of 'Intestacy' – this includes the requirement of an Executor to be appointed by the Court and can often mean that the beneficiaries of your estate may not be the individuals you would have hoped to have received the benefit from your estate.
If you need any advice about Wills and Powers of Attorney please get in touch with Blackadders’ Private Client Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland’.
Paul Nash, Trainee Solicitor
Read: Protecting Your Future in 2021: Wills and Powers of Attorney – Part 1
*Part 3 released Wednesday 27th January 2021
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