Would you give your life savings to a relative that you have never met?
Would you give the proceeds of an insurance policy to your 10-year-old child in preference to your spouse? Would you give the majority of your savings to your separated spouse? These are all scenarios that we have dealt with in recent years which could have been avoided if the person who died had made a Will. The law does not require you to have a Will but making a Will ensures that your assets and cash – described in law as your ‘estate’ – are left to the people you choose.
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.
Unsurprisingly, where there is not a Will in place, it is likely that the legal costs involved in the administration and distribution of the estate will be higher than if a well drafted Will had been prepared.
Married couples/civil partners
It is a common misconception that your spouse will inherit your estate if you don’t have a will. This is not correct. If the value of your estate is above a certain level, and you have children, they may end up inheriting more than your spouse. This may have unintended consequences and be of particular concern to a spouse where this is a second marriage and there is ill feeling between your children and new spouse.
Money which is due to children of the deceased is paid directly to such children notwithstanding that they may not have the ability to look after their own affairs. If the money due to a child is over a certain amount the Accountant of Court must be involved.
Your partner does not have any rights to your estate under Scots law. This is the case regardless of how long you have been together and whether or not you have children together. A cohabitant who has given up paid employment in order to look after the children of the relationship may be left in a particularly vulnerable position. Your estate will pass to your family which will include any jointly owned property, unless there is a survivorship clause in the title deed. Your partner can make a claim for a share of the estate however, success is not guaranteed. This involves an application to Court under the Family Law (Scotland) Act 2006. This is costly and stressful for the people involved as well as time consuming and could potentially lead to financial hardship whilst matters make their way through court.
Separated spouses/civil partners
If you are separated but not divorced and have not signed a separation agreement, your spouse will inherit from your estate even though you may have separated and been living apart for many years. They may be the last person in the world you would wish to inherit! It is advisable to enter into a separation agreement whereby it is usual for separated spouses to discharge (in other words ‘give up’) their rights over each other’s estate. Making a Will also means that your separated spouse will inherit less from your estate.
If you die without a Will and have children your estate will pass directly to your children. If you do not have children your estate will go to parents, siblings or more remote relatives, depending on your family tree.
You may have a family member who has a learning disability and is not able to look after their own affairs or you could have someone in your family who has an addiction and leaving money to them would cause them harm harm. It is important that you make a Will to provide for these circumstances. It is very straightforward to protect money for beneficiaries who may not be able to look after it themselves.
Wills Solicitors Inverness, Highlands, Scotland
Hopefully you will now be aware of some of the real benefits to you and your loved ones of a Will. Here at Innes & Mackay we have a very experienced team ready to guide you in the preparation of your Will. Contact us today on 01463 232273 or email [email protected]