When There’s a Will There’s a Way

Making a Will is a simple way to provide some certainty for you and your family on death.  In Scotland, if you do not have a Will, it will not always be the case that your estate will pass to your loved ones.   Having a Will allows you to choose your beneficiaries as well as save tax.    In making a Will you decide:-

The executors:  Who is legally responsible for winding up your estate.

The beneficiaries:  Who will inherit your estate – your partner, family members, friends, charities.

The guardians:  Who will be legally responsible for looking after your young children.

Funeral instructions:   Provide guidance for family and friends at a difficult time.

If you do not make a Will, your estate will be divided and distributed in accordance with rules dating back to 1964 and earlier which are very much out of date with the modern family set up.    For example, your home could pass to an estranged partner rather than your current one.

Tax

Not making a Will may also have tax consequences to the detriment of your family.  Valuable inheritance exemptions associated with civil partnership will be lost if a significant amount of your estate passes to parents, siblings, nieces or nephews or other relatives (following the 1964 rules).

Cohabitants

Perhaps, most importantly, a Will allows you to protect your partner, particularly if you are not in a civil partnership.  Without a valid Will, your cohabiting partner will not have an automatic right to inherit from your estate.    He or she will need to apply to the court if they wish to inherit from your estate and even on making an application, there are no guarantees as to what the court may award.  To add further stress, cohabitants only have six months from the date of death to make an application to the court.   In the majority of cases to date, the cohabitant has received less than what would have been the position had a Will been written.   The result of not making a Will can be a costly long drawn out process with an unsatisfactory outcome.  In most cases, this is not what the deceased would have wanted.

Civil partnership dissolved/divorced?

In contrast to England and Wales and unless your separation agreement states otherwise, dissolution of a civil partnership or a divorce does not revoke the provisions in your Will relating to your ex partner, they will still inherit if they are a named beneficiary.  It is essential that you review the terms of an existing Will if your relationship has come to an end.

Simplicity

A Will also simplifies the administration of your estate and avoids unnecessary steps and costs such as applying to the court to appoint an executor or the need to buy insurance to guarantee the value of your estate.

Cost effective and valuable

Making a Will is not particularly time consuming or expensive and could be one of the most valuable steps you take.   Families change over time and more often than not, we build up wealth during our lives.  Completing a Will ensures that your estate ends up in the hands of your nearest and dearest more quickly and efficiently,  and also allows for tax liabilities to be minimised.

Lindsay A Watson

Maclay Murray and Spens LLP

September 2012