The importance of making a Will
I know what happens when you die…I’m not a clairvoyant and haven’t had a near death experience, but I actually do, honest…
Ok, to be more precise, I know what happens to your assets when you die. Yawn, not very interesting you think. Well you can bet it will be extremely interesting to those you leave behind if they’re suddenly wondering who gets the house, car, jewellery and that vase which you thought might be Ming (or is it just mingin’) and intended to take to the Antiques Roadshow, “yes, it’s been in the family for generation so we’d never sell it… oh really, it’s worth that much… and where is the nearest auction house?”
The first question to be asked is, did you make a Will? This fundamentally changes how the administration (i.e. gathering in and paying out) of your estate (i.e. anything you own at the date of your death) will be dealt with. Obviously you are no longer there to answer the question yourself, so if you have made a Will, please make sure your family know which solicitor holds it or have a copy easily located amongst your papers. On that note, your family will really thank you for having your financial papers in order. It is not unknown for bin bags full of old statements, letters and bills to be presented to solicitors when they ask for information on the deceased’ finances. Always keep in mind “the less work for the lawyers, the less fees they can charge”.
So, if there is a Will, the administration of the estate will be dealt with in accordance with the instructions in the Will (with a couple of provisos noted below). The ‘executors’ appointed in the Will wind up the estate, with or without the help of solicitors depending on what is involved. So when selecting your executors, think about who would be willing and able to act, who is logistically close enough to give instructions and sign documentation, who is unlikely to die before you and make sure there is an additional or replacement executor named in the Will, just in case. The executors will then distribute your assets as per your instruction. Simple!
Back to the provisos referred to above. You may have heard that you cannot disinherit your children in under Scots Law. It’s true to an extent. Regardless of what you say in your Will, your children they are entitled to claim their ‘legal rights’ from your estate. This means they can claim a share of your ‘moveable’ estate (i.e. anything that isn’t land or buildings). It is a controversial point, in that, there are some who think you should have absolute freedom to leave your estate to whoever you choose. But that’s the way it is for now – no matter how uncaring or undeserving or ungrateful the little blighters are!
Second proviso: do you own a house? Is it in joint names? Is there a survivorship destination in the title? Do you know? Do you care? Well you should! If you have a title which is ‘joint and survivor’ with someone else, then, on first death, the deceased’s share of the house automatically passes to the survivor. Again this happens regardless of what your Will says. So check your titles, or even better get a solicitor to do it for you so you can discuss the benefits or drawbacks of having a ‘survivorship’ for your own circumstances.
So that’s what happens if you’ve made a Will, but what if you haven’t? The distribution of your assets is determined by statute – i.e. the government has decided. Generally spouses and children will inherit first, then parents, siblings and gradually more distant relatives depending on what family you leave behind. “Well that all sounds fine” you say, “I would want them to have it anyway”. But do you really want your spouse to inherit the house and only some of the money, with the rest being blown by your 17 year old son on a motor bike, holiday in Ibiza and extensive trainer collection? Also, if you haven’t made a Will then you haven’t appointed executors, so someone (usually the closest relative) will have to apply to court to be appointed as executor. This means more work for the lawyers (and more legal fees) and more stress, expense and delay in winding up the estate.
Finally, a note to all you co-habiting couples out there; you may see yourselves as married in every way but legally – but when it comes to succession it’s the legal bit that counts. If you haven’t made a Will, your co-habiting partner is not entitled to inherit your estate in the same way as a spouse. However, they can make an application to Court for a share of your estate. The share awarded, if any, is entirely at the discretion of the judge, who will consider aspects such as; how long have you been together, do you have children together, do you have shares assets. But, do you really want your partner to have to go through the time, expense (happy days of the lawyers again) and anxiety of quantifying your relationship in monetary terms and justifying it in court?
So, in summary, my advice is MAKE A WILL! It’s not that expensive, won’t take too long and you’ll be saving your loved ones a lot of time, stress and money.
Suzie Falconer, Associate Solicitor
Contact Us
For further information contact Suzie Falconer at Walker Laird on 0141 847 4946 or suzie.falconer@walkerlaird.co.uk.