When I was younger, the turn of the year would see me making grand plans for the future. Often those plans worked out and, in most cases, helped provide focus. Then I discovered there are events which blow the best-laid plans out of the water. We all experience them; if people let you down, or you realise health is not something to take for granted.
Too often people view their lawyers as people who only help when something goes wrong. I don't believe that; lawyers can work with clients to help them achieve more during good times, and protect them during a crisis. Let me explain with an example.
Donald and Elaine are in their early sixties. They had three adult children, each of whom had their own children. Sadly, one of their sons predeceased them. Elaine's parents are still alive, but starting to become a little forgetful. Donald and Elaine would like to retire, but aren't sure they can afford to. They are Directors and the only shareholders in a company. They are busy and haven't consulted their lawyer for any personal matters since buying their house 30 years ago. They don't have wills.
The worst scenario would be if one of them were to die without a will. You will not receive your spouse's estate just because you are married. The amount is restricted by statute, and in Donald and Elaine's case, it is likely their children will be entitled to receive a significant part of the estate. The children of their son who died will also be included and as there is no will, the court will likely have to intervene to look after their share until they are 16, at which point they will become entitled to ask for it. The future running of the company could be impacted and inheritance tax (IHT) might be a problem.
If they had consulted a lawyer, they would have been recommended to make wills, there would have been a Trust provision to protect the grandchildren, business assets would have been protected and IHT could have been minimised or avoided.
If one of Elaine's parents loses capacity, they will run into problems if they don't have a Power of Attorney in place. Assets can be frozen and care arrangements difficult to make, unless and until a Guardianship order can be obtained. This is a court application and can be costly and time-consuming. They should make a Power of Attorney now.
The ability to retire will depend on financial strength, and for many business owners this will depend on what exit strategy is envisaged for the company. It might be retained and run by a management team, with Donald and Elaine receiving dividends which fund their retirement. They might need to sell the company. Challenges can arise in family businesses when one child is involved in the business and would like to take over in due course. The parents often want this to happen, but then worry about how they ensure all children are treated equally.
When you are thinking about retirement, it is safe to assume that the earlier you take advice, the more options you will have. You will be more in control. Morton Fraser has created a client-focused approach called Designed for Life, which we use to show clients the benefits of planning. Then, if something goes wrong, it shows how to make the most of a difficult situation. Designed for Life is about making the most of life, whatever it throws at you. It is always relevant, but it feels particularly so at this time of year. Might your new year's resolutions involve a plan designed for your life?
Sue Hunter is a Partner with Morton Fraser