How do the COVID-19 measures affect my estate planning?
Estate planning allows you to get ahead of your future and ensure all the appropriate documentation that divides your estate is in line with your wishes. Having a well-thought out plan will not only protect you should you lose mental capacity, but it will also support your family and causes close to your heart on your death.
A number of roadblocks have been put in place as a result of the coronavirus (COVID-19) pandemic; from adapting your home into an office, to finding a suitable witness to your Will. Organising your affairs can feel near enough impossible while adhering to the current government guidelines, however, our team remains on hand to ensure that the current crisis does not impact your estate planning.
In this guide, we will cover three main areas of estate planning along with steps you can take to ensure the documentation is valid:
(2) Power of Attorney, and
One of the most fundamental and crucial parts of successful estate planning is ensuring you have a valid Will in place. By doing so, you can set out what you want to happen on your death, make decisions about which family members or loved ones will benefit from your estate, and ensure your assets are divided according to your wishes.
While this is not a conversation many people like to give much thought to, there has never been a more crucial time to write or amend your Will. The government’s decision to include Wills lawyers in the limited list of key workers only reinforces the significance of a Will at this time.
Dying without a Will (or dying intestate) puts your loved ones at risk of not receiving what you want them to from your estate. With the additional time at home, the number one thing you can do to protect your estate and family is create a Will.
The coronavirus has impacted how we can witness and sign such documents. With the current pandemic in mind, the Law Society of Scotland (LSS) produced temporary guidance to try and combat these issues. If you instructed a solicitor before the social distancing measures were put in place, or you are looking to start writing a Will today, read the current guidance on how to sign your Will here.
A strong estate plan is more than just writing a Will; it could also include a Power of Attorney. While setting up a Power of Attorney can be used to give you more control over what happens if you lose mental capacity, in times such as these, it may also help if you are in isolation.
Similar to Wills legislation, the signing of a Power of Attorney must be witnessed in Scotland. The person setting up the Power of Attorney must also be interviewed by a solicitor or medical practitioner for the document to be valid.
The government initiated a lockdown which encompasses no social gatherings, remaining at least two metres away from people, and staying at home unless for specified circumstances. Due to this, there are areas in which the execution of a Power of Attorney is now more challenging – especially with regards to signing the document. While this would typically be done with a physical witness, it has been suggested that this happen through video technology for the interim.
A six-step procedure has been proposed by the LSS to fulfil the legal requirements of the Adults with Incapacity (Scotland) Act 2000; from receiving the Power of Attorney document to sending the original copy back to your solicitor. You can find more details about the process here.
It is therefore still entirely feasible to execute your Power of Attorney document under the current circumstances.
Estate planning takes careful consideration into choosing trustworthy people to either benefit from or help with the distribution of your estate. Although this pandemic has restricted our movements outside our home, it has also given us the opportunity to consider such tasks that we have put off as a result of being too busy.
Like Wills and Power of Attorney, setting up a Trust involves picking one or more people (known as trustees) to be legally responsible for part of your estate. By setting up a Trust, you can ensure payments or property are distributed to who you wish (the beneficiary), for example, you may want a child to receive money once they reach a certain age. Additionally, a distinct advantage to setting up a Trust is to minimise the amount of taxes due on your estate after your death. It is an extremely flexible way for your assets to go to the people or purposes that you wish.
Setting up a Trust follows similar legal requirements to Wills and Power of Attorney. A Trust is set out by a legal document called a Trust Deed which must be signed by the person setting up the Trust (the settlor) and the trustees, with the signatures witnessed. To avoid making any mistakes while setting up a Trust during lockdown, get in touch with a private client lawyer to ensure you are executing the documentation correctly.
This guide initially asks if estate planning will be affected at this time, and the short answer is no. Setting up a Will, Power of Attorney or Trust is still very much possible; it is just the process of executing the documents that has changed. It is vital that we avoid panicking, but instead plan effectively. While the current crisis has impacted various decisions we usually make on our own, estate planning is one area that we are still in control of.
We have been granted with something we never had before – the opportunity to execute our entire estate planning from the comfort of our own homes. This is a clear advantage to those who would usually struggle to get to their lawyers’ offices or find the time to consider their long-term wishes. Sorting your estate planning will allow you to come out of this pandemic prepared for all eventualities.
Despite the current restrictions, finalising your documentation is not impossible. By contacting one of our professional lawyers at The McKinstry Company, we can provide you with the latest guidance on how to carry out your estate planning while sticking to government guidelines and legal requirements. We have adjusted our procedure to ensure you can continue to plan for the future and protect your family and loved ones from any problems with your estate on your death. Call us today on 01292 281711 or complete the online contact form today.
This guide does not constitute legal advice and is provided for general information purposes only. If you require specific legal advice you should contact one of our lawyers who can advise you based on your own circumstances.
Please note this information is accurate as of 07/05/2020 and is subject to change on a day-to-day basis as we become more aware of how legislation will be adapted due to the virus.
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