Your Wills Solicitor in Inverness, Highlands
Planning for a time when you are no longer here is something that shouldn’t be undertaken alone. There are many different things to consider – from how your estate should be arranged so that your family aren’t unnecessarily burdened when organising your affairs and property; to making sure that how you want your assets to be distributed is made sufficiently clear to those left behind.
If you are interested in hearing about how a Will can help to communicate your wishes and how your estate will be handled when you die, speak with the expert private client team at Innes & Mackay. We look after clients all over the Highlands including Wick, Skye, Caithness, Sutherland and Wester Ross.
How does a Will work in Scotland?
Over our lifetimes, we amass a considerable amount of property. When we pass away, this property –described in law as our ‘estate’ – will need to be distributed. The benefit of a Will is that it can specify in clear language what you wish to be done with your estate when you are no longer here.
When will a Will be legally valid?
The consequences of drafting a Will are important to keep in mind: it will oblige your family members to follow its terms, regardless of their feelings on what you have decided. It is for this reason and more that there are certain requirements that need to be met before a Will can be deemed legally valid:
- The decision to create a Will must be one that you make without any pressure from anyone else
- The directions that you want to give concerning the distribution of your estate must be put in writing
- You must sign the document in the presence of a witness to confirm that you understand the consequences of creating a Will.
What should be covered in a Will?
A Will should give your surviving family members and loved ones a detailed guide on what you want to happen with your estate when you pass away. To that end, it is vital that your Will refers to every piece of property that you own: your home; your assets (shares, business interests etc.); personal items (photographs, clothing etc.); furniture, antiques and other valuables.
If any part of your estate is not covered in your Will, then there is the risk that your wishes for how that part should be handled will not be followed. For instance, you may have told certain family members or friends that you want them to have a certain piece of your property when you die, but if those wishes have not been recorded as part of a Will, there are no guarantees that your wishes will be followed.
It is also very important, as part of creating a Will, that you decide who is to have responsibility for ensuring that its terms are followed. This person is known as your ‘Executor’. You have complete freedom in who you decide to give this role to, but you should make sure that whomever you choose understands the nature of the role of Executor: they will be legally responsible for ensuring your wishes are honoured, and that any debts or financial obligations that your estate has, e.g. payment of tax and other liabilities, are honoured.
Do I need to have a Will?
The law does not require you to have a Will. However, there are consequences if you do not have a valid Will when you die: you will be deemed to have died intestate, meaning that your estate will be distributed according to specific rules set by Scots law, rather than according to your wishes.
Contact our Will Solicitors in Inverness, Highlands, Scotland
At Innes & Mackay, we are expert Will drafters with many years of experience working in Inverness. We work closely with our clients to ensure all their wishes are accurately, thoroughly and validly recorded, providing them with the peace of mind that their estate will be distributed in the way that they intend when they die. Please contact our private client team for more information.
The experience of losing a loved one is a very emotional one for surviving family. The situation can be complicated by the need to sort through, organise and distribute the property that they leave behind. This is known as the Executry process and will normally be carried out by the Executor, the person the deceased identifies in their Will for carrying out their wishes.
The team at Innes & Mackay appreciate that people may find the prospect of having to fulfil their responsibilities as the Executor of a loved one’s estate very daunting, not least when they are still attempting to cope with their loss. If you need help in understanding the Executry process, our team can help.
Putting the Wishes of a Deceased into Practice
The job of the Executor is to follow a process, the first step of which is to look at the terms of the deceased’s Will. This document will set out what the Executor is to do with the deceased’s property.
Assuming that the deceased has left a Will, the next stage in the process for the Executor is to organise for ‘Confirmation’, sometimes described as ‘Probate’. The name is not overly important, but it involves contacting the Scottish courts to have their permission to begin the administration of the deceased’s estate according to the terms of their Will. It is important to understand that there are different kinds of Confirmation that can be asked for, which will depend on the value of the estate that a loved one has left behind.
In receiving an application for Confirmation, the courts will look to be satisfied that all of the necessary paperwork has been completed and that everything is in order to allow for the deceased’s estate to be distributed according to their Will. It is only after Confirmation has been granted that an Executor can begin to follow the terms of the Will.
When there is no Will – Intestacy Scotland
It is important to keep in mind that a Will is essentially a guide for the Executor as to what they are to do with a deceased’s property. Where there is no Will, the Executor will in effect have no legal guidance on what the deceased intended to be done with their estate. As a result, the law will impose a new set of rules for dealing with a deceased persons’ estate called the rules of ‘intestacy’.
The rules of ‘intestacy’, i.e. when a deceased has left no Will, also provide for a process that is to be followed. However, the result of following these rules can be slightly different to what a deceased would have otherwise intended:
The first thing to be done is for the appointment of someone to organise the deceased’s estate. Given that there is no Will to specify who this person will be, it becomes the responsibility of the Scottish courts to appoint this person. Their role will be the same as an Executor’s, but they are called an ‘Executor Dative’.
The next stage of the intestacy process is for the Executor Dative to begin to administer the deceased’s estate. It is important to understand that the Executor Dative is required to organise the estate according to a strict set of rules: their first priority will be to clear any outstanding debts on the estate e.g. mortgages, loans etc. It is only after they have done this that they then attempt to distribute the remaining estate amongst a deceased’s surviving family members.
Surviving family members’ rights under the rules of intestacy are particular. An Executor Dative must cover each in turn, which can have consequences for whether or not certain people will be able to benefit from an estate at all.
The Executor Dative will first attempt to satisfy a set of rights that is owed to a deceased’s surviving spouse or partner. These are known as their ‘Prior rights’ and they entitle them to, amongst other things, the value of the deceased’s home up to a certain limit and a proportion of the furniture in that home, also limited to a certain value.
Having satisfied the ‘Prior Rights’ of a deceased’s surviving spouse or partner, the Executor Dative must then attempt to observe another set of rights that they enjoy. These are known as their ‘Legal Rights’, entitling them to a share in any money that the deceased left behind. It is important to understand, however, that they may not be entitled to all monies left behind by the deceased where there are also surviving children to account for.
The last step in the process for an Executor Dative is to distribute any remaining property in a deceased’s estate. This is known as the ‘Free Estate’, which tends to be given to other surviving family members. However, it is important to point out that it is possible for the satisfaction of Prior and Legal Rights to result in there being no property left over to form a Free Estate.
Specialist Executry and Probate Lawyers Inverness, Highlands, Scotland
The Executry process can be difficult to understand, not least because of the amount of paperwork that tends to be involved: court correspondence; liaising with banks and other companies that a deceased owe money to, or is entitled to money from. At Innes & Mackay, our friendly team of Executry lawyers understand the problems clients face in attempting to follow the Executry rules. We are often asked to help Executors complete their job in administering a loved one’s estate, and to advise families when a loved one died without a Will. If you are in need of assistance from a team of solicitors that prides itself on providing easy to understand, practical legal advice on Executries, please contact our team using our online contact form or give us a call now on 01463 232 273.