EXECUTRIES, WILLS AND POWERS OF ATTORNEY

When someone dies and leaves assets which have to be dealt with either in terms of their Will or under the rules of intestate succession (where there is no Will) an executor must be appointed and, unless the assets are very modest, in most cases an executor employs a Solicitor to act as his agent to deal with the administration of the estate. Handing over the paperwork to a Solicitor who is experienced in this type of work can greatly relieve the stress of dealing with complicated practical matters at a difficult time. In a large estate, Inheritance Tax may be payable and in any estate if there are children, they may be entitled to claim legal rights from the estate. Many more people now own shares in companies and selling or transferring these is not something which everyone is familiar with. If there is a house or other property involved, Confirmation to the estate always has to be obtained in order to have the necessary link in title. Obtaining Confirmation involves preparing an inventory of the estate on an Inland Revenue form and submitting this to the Sheriff Court.

All this has been part of our everyday work for as long as we have been established - we try to deal with it speedily and sympathetically. Many more people are now in the Inheritance Tax bracket because house prices have increased but the exemption limit has not increased at the same rate and it is therefore all the more important for advice on minimising tax to be taken at the stage when a Will is prepared. The interaction between Inheritance Tax, Capital Gains Tax, the Pre-owned Assets Tax, and the situation where an older person has to go into a home and the house has to be sold, all have to be considered at the stage of making a Will and taking tax saving measures.

Now that people are living longer and life is more complicated, many people are giving a Power of Attorney to a relative, friend or professional advisor to administer their affairs if they need help or lose capacity to make decisions for themselves. The new legislation under the Adults with Incapacity (Scotland) Act 2000 provides for Continuing Powers of Attorney and Welfare Powers of Attorney and the legislation is supervised by the Office of the Public Guardian. We have to satisfy ourselves that the person giving a Power of Attorney understands the concept and has not already lost capacity and in some cases medical opinion has to be obtained.

When it is clear that someone has definitely lost capacity to run their own affairs, the new legislation also provides for an Intervention Order to be obtained to do something on behalf of the person who has lost capacity or as a last resort, the appointment of a Financial and/or Welfare Guardian to take over their affairs completely and that involves a Petition to the Sheriff Court with Reports from two Doctors and a Mental Health Officer. We have undertaken a good number of these, with either a relative or one of us being appointed as the Guardian and we will be pleased to advise on the operation of Guardianships from our own experience.