Gather round the firepit. The bantz in this blog will be awesome and will help avoid some #awks moments on estate planning. For those who have not been watching this summer’s hit ITV2 reality TV, this blog is about the importance of getting your wishes for who will inherit your wealth down clearly on paper.
“100% my type… on paper”
If you want particular individuals to benefit from your personal estate under your will or benefit from pensions or life policies or similar, you really need to get it set out on paper. It is good to make things clear: for example, if you happened to previously be in a boyband, make it repeatedly clear to everyone that was the case. Apply that approach to documenting your wishes: express, clear and unambiguous.
What happens if you do not do this? Melt!
If you do not write a will the law of intestacy applies. That means broadly that a group of almost exclusively older gentleman in the early 1960s will decide who inherits your hard earned wealth. That is because the intestacy rules are mostly governed by the Succession (Scotland) Act 1964. It is particularly unhelpful for individuals who have significant wealth that is NOT comprised in the family home.
The 1964 Act can put at risk the “expected” (i.e. what you might think should happen) succession to cash, private companies and investments. Why? Because beyond the family home, the 1964 Act starts a process of splitting cash, private companies, investments and any other moveable assets between/among children (irrespective of age), spouse/civil partner (might be separated) and, perhaps even more surprisingly, parents and siblings. On the latter, where there are no children, the law prefers to pass the bulk of your cash, investments and private company to the brother you have not wanted to communicate with for 20 years rather than your wife. And it does happen!
For those who cohabit but are not married/civil partnered, it is even more important to make a will. Cohabitants have no automatic rights to inherit where there is no will and only have the right to raise a court action to receive payment/assets from the estate. This is difficult, uncertain, long and might not achieve what a cohabiting partner would hope. To be avoided!
So, take control by making a will. If a beneficiary is, in Love Island parlance, 100% your type, then put it on paper in a will. Otherwise they might get dumped or pied.
Apply some aftersun: wealth beyond your personal estate and will
The same issues apply to death benefits. We have talked a lot about these before and most recently in this blog. As discussed in the previous blogs the new rules on pension death benefits are extremely attractive but if the paperwork is not right it can be very easy for loved ones that you would wish to be able to benefit to be mugged off.
It’s not always #obvs : powers of attorney
Powers of attorney are another example where paper is important. It might seem #obvs that e.g. your husband should make decisions about your health and welfare as well as finances if you lose capacity to do that yourself. Doctors (Dr Marcel or otherwise), banks, care homes, the purchaser of a house all want to deal with your attorney. It is the attorney who is (almost exclusively) empowered to make decisions; not a spouse/civil partner, partner, child, mother/father or friend. If you want e.g. your spouse (or whoever you select (need not always be “coupled up”)) to be able to be able make these decisions and promptly, get a power of attorney.
“I got a text!”
In new developments this week, the (English) Law Commission is consulting on a refresher to rules on making (English) wills. One thing the Commission suggests should be seriously considered, is the right to apply to the court to implement the wishes of a deceased as contained in an email, text or other electronic communication. So, it could be something like a tweet saying ” .@JoeBloggs2 u r 2 get the house #bequest ;)” . The Law Commission recognises that this could open up all sorts of possibilities for disappointed and disgruntled family members and others – it could create new opportunities for contention, cost and uncertainty that just having rules based on what is “on paper” seek to avoid. Of course, looking to modernise succession is a good thing and we have previously written on the topic of digital succession.
Can Love Island give us more legal advice inspiration?
I will leave that to my colleagues in our top ranked family law team!
This blog was written by Alan Eccles – firstname.lastname@example.org @BrodiesPersonal
On July 13, 2017