Most people know that they ought to have a Will, but many do not follow through on making one.
This may be because they feel it is a document that will only be needed later in life, or that there is no point because their circumstances are likely to change in their lifetime, or even that the law will manage to deal with their estate appropriately without their involvement.
However, there are several benefits to putting a Will in place at any age. This can include:
In our experience, it is particularly important to put a Will in place in the following circumstances:
At BTO, we can advise you on all aspects of succession law to ensure your assets are protected as far as possible, appropriate provisions are included in your Will, any tax mitigation measures are implemented and you have a legally valid and efficient Will in place.
A Will is a legally binding document which confirms your instructions on how your estate is to be handled and distributed following your death. A Will only comes into effect on your death and can be changed at any time prior to this.
It is recommended that everyone make a Will, regardless of the size of their estate. It is the only way to ensure that your wishes are given effect to after your death. A Will can also deal with other important aspects of your estate, such as the appointment of Guardians for young children and funeral instructions. A Will also appoints Executors to administer your estate who, in the event of a dispute, will have the final decision on matters. Even if there are minimal financial assets to be dealt with, Executors can still play an important role in distributing sentimental items and finalising your lifetime affairs.
If you die without a Will in Scotland your estate will be an “intestate estate”. There are fixed rules for the distribution of an intestate estate and a ranked order of priority for beneficiaries who will inherit starting with immediate family and moving down to remote relatives. If you do not make a Will your estate will be distributed in accordance with these rules, regardless of your personal wishes.
A Will is a legal document which must meet certain requirements in order for it to be valid. It is therefore recommended that a Will is prepared by a solicitor to ensure that it meets these requirements. In addition, a Solicitor can advise on more complex matters which you may not have appreciated are relevant to your estate, such as trust provisions to protect young beneficiaries from inheriting too soon or the claims which other people have against your estate.
An individual over the age of 12 who has capacity can make a Will in Scotland. There is no right time to make a Will but it is recommended that you should make a Will at the earliest opportunity. A Will should be reviewed continuously throughout the course of your life and especially following any major life events, such as a new job, new house, marriage, children, divorce, death of a relative, and so on. As you move from one stage of life to another, it is likely that you will need to update your Will, or make a new one, from time to time. Your solicitor will be able to provide advice on updating your Will at the necessary times.
That is a personal choice and one which your solicitor will be able to advise you on. You can choose to leave legacies of amounts of money or specific items in your Will to named individuals, however you do not have to leave any legacies in your Will if you do not want to. You must include in your Will a direction regarding who will inherit the residue of your estate, which is everything left over after payment of possible tax, debts and legacies. You must also appoint at least one Executor in your Will who will be responsible for winding up your estate.
If you or your partner dies without leaving a Will in Scotland, there is no automatic entitlement for either of you to receive anything from your respective partner’s estate. If you do not live together then you will have no right to receive anything from the estate, even if you have children together. If you are cohabiting with your partner at the date of their death then you have a right to apply to the court within 6 months of their death for a Cohabitant’s award. This is where the court will review your relationship with the deceased and decide whether or not to award a percentage of their estate to you. This process is entirely at the court’s discretion and the amount of the award is variable. There is also no guarantee that the court will award anything in your favour. This could be entirely avoided by making a Will in favour of your partner whilst you are alive.
Yes, although not legally binding, you can state your wishes as to who you would like to look after your pet if you die.
Yes, you are entitled to leave whatever you would like to charity in your Will. Your solicitor will be able to advise further on your options here.
You can decide to leave out your spouse and/or children in your Will, effectively disinheriting them from your estate. In Scotland however you can never fully disinherit your spouse or children as they will still be entitled to claim their legal rights in your estate. Legal Rights entitle a spouse and/or children to a specific share of your net moveable estate (everything that is not land or buildings) on death. The amount they are entitled to varies depending on whether you leave a spouse and children, just a spouse, or just children. Your solicitor can advise you further on your spouse’s or children’s future legal rights entitlements to your estate, along with possible ways to minimise the value of these.
Yes, you can make changes to your Will at any point. In fact it is recommended that your Will should be reviewed continuously throughout the course of your life and especially following any major life events, such as a new job, new house, marriage, children, divorce, death of a relative, and so on. As you move from one stage of life to another, it is likely that you will need to update your Will, or make a new one, from time to time. Your solicitor will be able to provide advice on updating your Will at the necessary times.
If you and the other parent of your children die whilst they are still in minority, you can appoint Guardians to your children in your Will. This appointment in your Will passes your own parental rights and responsibilities on to the Guardian. If you do not have a Will then a court order would be required in order to award parental rights and responsibilities to someone.
Second marriages and blended families can often require detailed succession planning to make sure that your spouse and children are both provided for following your death. Your solicitor will be able to discuss with you the various options available. The advice provided will likely cover how you can ring fence the bulk of your assets for your children to receive at a later date, whilst still allowing your surviving spouse to receive the benefit of these whilst they are alive. Dying without a Will in these circumstances can often mean that the surviving spouse receives the whole of the estate, leaving nothing for the children of the deceased. Effective planning and putting in place appropriate Wills can avoid this situation happening.
The cost of a Will can vary depending on a number of factors including the complexity of the Will, the assets in your estate, and the time involved in advising you on your estate planning matters. An initial discussion with your solicitor will give them a good idea of the work involved and they will be able to provide you with an estimate of costs at this stage. If anything becomes more complicated as the work progresses, they will advise you of the possible increase in costs.
Any independent adult who has capacity can act as a Witness to your Will. The Witness must not be an individual named in the Will.
Strictly speaking, yes a Will can be contested if you can show that you have an interest in doing so. However, the success rate for contesting a Will is very low and can be a long and costly court process. The grounds for contesting a Will relate to the circumstances surrounding the preparation of the Will including (a) whether the testator had capacity to make the Will (b) whether there was any undue influence on the testator when making the Will, or (c) whether the Will was made as a result of fraudulent representations. The onus of proving the grounds of invalidity rest on the person contesting the Will and they must be able to provide persuasive evidence to establish a case.
There is no one size fits all approach to tax planning and there are numerous options available which can be utilised to reach your end goal. You should seek advice from your solicitor on how best to achieve this. Your solicitor will be able to review your financial matters and create bespoke planning recommendations for you and your family based on your specific circumstances.
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