Dianne Paterson: Make your resolution to put your affairs in order

One week into the New Year and the struggle is on '“ to keep those New Year's resolutions and achieve those impossible goals.

Dianne Paterson is a partner in Russel + Aitken LLP

A New Year has always been seen as a time for attempting to reform old habits and achieve new goals. Of course, the success in fulfilling any New Year’s resolution usually depends on the nature of the resolution and determination of the party trying to achieve it.

Most of us struggle to keep resolutions. However, this might have less to do with willpower or resolve and more to do with the resolution itself and the change that is required. There is a lot to be said for ditching impossible goals and trying, instead, to achieve those which are more realistic and sane.

Everyone likes to think that ‘their affairs are in order’ but they so often are not. With resolve and determination, a realistic goal could be to have your affairs in order in 2018.

As much as we might wish to ignore it, we know that we are not going to live forever. For this reason, most of us know that we should write a will.

Without question the most important reason for making a will is the certainty it can bring in allowing you to control who will inherit what from your estate.

Without a will (intestacy) the law sets out certain rules as to how an estate should be divided. These rules dictate the distribution of the estate to spouses, civil partners, and children.

This can mean, in certain cases, the amounts laid down by the law will not exhaust the total estate left or, alternatively, that the spouse or civil partner will be entitled to the lot, leaving nothing for children. In addition, complicated rules apply to cohabitees requiring them to make a claim on an estate within a set period.

Without a will, the law determines not only who inherits but also the amounts of that inheritance.

A will also enables you to appoint Executors who are responsible for carrying out your wishes and ensuring your estate is wound up timeously and efficiently. Without a will, Executors are appointed by the Court, an appointment which might not necessarily have met with your approval.

Anyone who has young children should make a will to ensure their wishes for guardians are recorded rather than leaving such a decision to relatives or the courts.

If you run a family business, a will can provide an opportunity to ensure the business lives on long after your death.

A will is the perfect place to detail your funeral wishes, especially if there are religious or non-religious requirements or family traditions to uphold. Unless you write it down, your wishes may not be known or respected, and disagreements amongst family could arise.

While there is nothing surer than death, and therefore, in turn, the need for a will, some might argue the need for a Power of Attorney is not quite as pressing. However, the fact is that whilst people are undoubtedly living longer now, they are not necessarily doing so in good health.

Add to this the formalities now required by financial institutions to allow access to a person’s accounts, should that person become incapacitated, and it is easy to see why Powers of Attorney have now become essential to the smooth running and regulation of a person’s affairs.

Like the absence of a will, issues can arise where there is no Power of Attorney in place. Without one, an application to the court for an order to regulate a person’s affairs might just be required.

Not only is such a process expensive and time consuming, but it might also be that the guardian appointed to manage your affairs is not the person you would have chosen.

If nothing else, in planning ahead by making a will and arranging a power of attorney, you will have some peace of mind knowing that, when the time comes, you will have done all that you could to make life as simple and as straightforward for those left behind. You will have left your affairs in order and achieved your goal.

When seen in this context, not only are these resolutions worth making, they are also resolutions definitely worth keeping.

Dianne Paterson is a partner in Russel + Aitken LLP