"You Can't Take It with You" - But You Can Leave a Will

28 March 2011

Sir Gerry Robinson’s quality BBC 2 series on making a Will, “You Can’t Take It with You” has contributed to a recent spike in clients asking for advice on the issues and complexities of writing a Will under Scots Law. Maybe you have a difficult dilemma like the families featured in one of Sir Gerry’s episodes such as choosing a Guardian, designing a Trust Fund for a disabled beneficiary, or passing on the Family Business. Or, alternatively, maybe you do not have much to leave behind and just require a simple Will.

Across the course of the six episodes the mantra became, whatever your situation, legally speaking making a Will is always the safest option. For many Sir Gerry’s shows made them realise that, at the very least, there is real sense in bringing families together to write their Wills. To face the difficult challenges and decisions that can come with that terriotry head on by communicating. On the flip side the series also acted to hightlight the vastly greater potential for problems and arguments once you are gone had your wishes not been committed to paper.

With this in mind, the Inksters’ Wills & Executries team have put together a collection of answers to the most Frequently Asked Questions regarding writing a Will, ranging from the simple to the more obscure. Of course, these FAQs are only designed to evolve a basic understanding of the law and as everyone’s situation is unique in most instances it may be best to discuss your position with a lawyer.

If you feel ready to discuss writing a Will please call or email our experienced Wills team, who are on hand to listen to your needs, explain your options, and ultimately to help you express your wishes in a Will. We understand it is easier to put these things off, but without a Will nobody can be certain of your wishes. Remember, you can’t take it with you – but you can leave a Will

Frequently Asked Questions: Why Write a Will?
 A Will is a legal document that sets out exactly what you want to happen to your estate after your death. It can also include other information and wishes, such as who you want to be your Executors. (See Who are Executors)
An Estate is the value of all your assets, such as houses and land (known as heritable property), as well as cars, bank accounts, shares, pensions, life policies (known as movable property), less any debts (such as mortgage redemptions, outstanding loans and funeral expenses etc.)
Executors are the persons appointed to administer your affairs after your death. For more information please see What happens if I don’t name an Executor.
Whether your estate is large or small a Will can be extremely helpful to those you leave behind. A Will can remove any uncertainty around your wishes which in turn relieves pressure from family members trying to do the right thing.
If you are married you may think that if you were to die without a Will the situation would be straightforward and your spouse would get everything. This is not correct. Your spouse will certainly get the martial home (up to a value of £300,000) along with its contents (up to £24,000) and any cash (up to £75,000). They will then also be entitled to (up to 50%) of any movable assets, such as stocks and shares and life assurance policies. Thereafter any remaining heritable property, like a holiday home, along with the remaining proportion (up to 50%) of the movable assets are distributed in line with statute, with spouses a long way down the priorities after children, parents, and siblings amongst others. What’s more in Scotland if you also have children they are statutorily entitled to a third share of all of your movable estate (between them if more than one), along with the entirety of any remainder of your estate that is left over. Therefore often when a wealthy married person dies without a Will, both the children and the tax man can do just as well, if not better, than the spouse. Obviously this can become a serious problem if there is a family fall out or fued. A properly drafted Will can avoid such complications and incorporate sensible inheritance tax planning measures. (see also Can I save money through IHT planning)
What if something happened to you (and your partner at the same time) and you died leaving children. If they are under 18 who should look after your children, should your children inherit directly or via a trust, are they old enough to manage a lump sum of cash? If not, should you nominate a Trustee and/or a Guardian, and if so should you speak to them first about your wishes regarding the purpose of the Trust or the way you would like your children to be raised. For instance – where you would prefer your children to be education? In a Will you can make prevision for all of these eventualities so that you are confident that if the worst was to happen you have done everything within your power to protect your children.
If you are in a long term relationship and die without a Will specifying your wishes your Partner would not be automatically looked after. Your partner’s right to your estate would most likely require to be decided in the courts, and could amount to only a share of your estate. In such instances the courts would assess the commitment demonstrated by you whilst alive towards your partner, taking account the length of time you had been together, the living (and sleeping) arrangements, along with other factors such as whether you and your partner holidayed together. All in all it takes time and can add unnecessary distress, challenges and embarrassment to an already traumatic period. For the most part a Will can solve these issues, enabling you to name your partner as a beneficiairy - although please note if you are still legally married to a third party or have children these factors may need to be taken into consideration when writing your Will. See our article on Cohabitants and Intestacy for more information. (Also see: I'm still married but we are splitting up/separated).
If you are separated from your spouse and unlikely to reconcile your differences it is extremely important to write, or indeed amend, your Will. This is because in Scotland a spouse has a “Prior Right” to the marital home (up to a value of 300,000), that home’s contents (up to value of £24,000) and up to £75,000 in cash - which for many people would be their whole estate. On top of this a spouse also has a “Legal Right” of up to 50% of the remainder of the estate, 30% if you have children. Therefore, although your marriage may in all other senses be over (you may even be in the process of getting divorced) until such time as your marriage is legally dissolved your spouse’s rights as explained above persist, making a Will to redirect at least your cash essential. Such situations are often uniquely complicated and due to this we would recommend you get in touch with Inksters to discuss your particular situation more thoroughly. Inksters' Gus Macaulay can also assist you with your separation and Divorce.
If you have no spouse, partner or dependents, who would you leave your estate to? All to one friend, or a relative, or split between several? If you don’t have a Will, statutory law determines who your estate would go to, and in what proportions it is to be divided up by. Often this could mean a remote relative gets everything where you may have preferred all or part of your estate to go to a close friend or a favourite charity. This may be important to you even if your estate is modest.
Do you have some items of sentimental value you wish to give to a certain person? In a Will you can leave specific items to specific people. Therefore even if you do not have a great deal of wealth, but do have some personal or family heirlooms you can nominate the destination for such items, and be confident that those you trust will one day look after your most treasured possessions.
A Will allows you to nominate Executors, meaning you can give thought to who you feel would be best able to administer your affairs (Executors). An Executor can be a family member, a friend, a solicitor or indeed any combination of the three. If you do not have a Will statutory law dictates who your Executor should be based on next of kin. This could mean your closest relatives are left with a legal headache that could be too much for them to cope with at an already difficult time. This is because an Executor in an intestate case requires far more legal guidance due to the potentially controversial nature of the estate and the higher likelihood for claims against the estate. As well as avoiding any difficult and distressing issues the benefit of nominating an executor is that at worst it gives you the chance to ask your nominee their opinion on the matter.
Have you thought about Inheritance Tax Planning, as all of your estate above the threshold of £325,000 faces 40% inheritance tax (IHT). However gifts to a husband or wife are generally exempt from IHT. For example, if instead of leaving all the property and/or assets to your children, you give it to your spouse, the transfer would be exempt and not attract IHT - even if the estate is valued at more than £325,000. Furthermore, if by doing this you do not use your £325,000 tax exemption allowance it is possible for the remaining balance to be transferred over and used against your spouse’s estate. Meaning their estate could then be exempt up to £650,000, which would mean in the long run your children would inherit more as the tax liability would be lower. A Will allows you to plan your IHT to maximise the proportion of your estate that passes to your beneficiaries and not to the tax man. [N.B. IHT thresholds & rates are correct at time of publishing and are subject to change]
Have you thought about leaving something to charity? In a Will you can leave a legacy, be that large or small, to a Charity who may have helped you or someone close to you at some point in your life. Charity donations are tax exempt too.
The length of time it takes to construct a Will depends entirely on the individual circumstances of each client. However, after an initial conversation with a Solicitor (be that face-to-face, telephone or email) most of the work is done by your solicitor, away from you, and without any hassle to yourself. As an indication a simple Will can take as little as a couple of weeks to turn around.
The cost of writing a Will increases with the relative complexity of the arrangements you require. Around nine out of ten Wills are fairly straight forward and do not cost a lot of money (around £100), and given that they can save a lot of money (by reducing: Inheritance Tax, Executry fees, and indemnity policies) they should in fact be viewed as a potentially money saving option. Also if you and your partner write your Wills together, as mirror Wills, you will save even more money - up to 50% off the second Will (i.e. £150 for two simple Wills). We would also like you to know that at present Inksters are running a Free Will Scheme in association with Barnardo's, which is open to persons over 55. (Subject to Terms & Conditions) (Prices correct at time of publishing)

Once again if any of the above points have made you think seriously about writing a Will or if you would like to discuss any of these matters further - including the Barnardo's Free Will Scheme - please do not hesitate to get in touch, by telephone on 0141 229 0880 or simply by sending Kathleen Simmonds an email.

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