Making a Will
What follows is a general guide, and it is important to take full legal advice.
If you already have a Will, then if you die, the terms of your existing Will stand, even if your circumstances have changed since you made that Will. In Scotland marriage or entering into a civil partnership does not have the effect of making an old Will invalid. In these circumstances the terms of your Will might be open to interpretation. A court might have to decide whether a legacy to "my husband" meant the husband at the time the Will was written or the husband at the time of death. The birth of a child will not change or cancel a Will either, although there are other ways that a child can make a claim. (See the section called "Legal Rights").
If you have never had a Will, then on death what you owned ("your estate") would be divided up according to legal rules of "intestacy".
When someone dies and leaves no Will their surviving wife/husband/civil partner is entitled automatically to certain shares of the estate called "prior rights". The financial figures set for prior rights change from time to time. At the moment (May 2011) the surviving husband/wife/civil partner can inherit:
- the home they are living in up to the value of £300,000 (or that amount if the house is worth more.)
- the furniture in the house worth up to £24,000.
- a payment of up to £42,000 if there are children, or up to £75,000 if there are no children.
After prior rights have been dealt with the surviving husband/wife/civil partner and any children each have rights to a share of what is called the "net moveable estate". This might include items such as money, jewellery and shares. If there are children the share for a widow or widower is 1/3 and the same proportion is shared among the children. If there are no children the widow or widower or civil partner receives ½ of the moveable estate. If there is no widow or widower, the children share half of the moveable estate.
Any remaining property:
The remaining property will go to surviving family members in a strict order. For example, if there are any children it would go to them. If not, it would be shared between the parents and the brothers and sisters of the person who died and so on. This sequence is laid down and can deal with all the combinations of surviving relatives.
Cohabitants: cohabitants do not have any automatic rights
They may be able to make a claim on their deceased partner's estate, but only where there is no will. The claim must be made to a Court within six months of the death, and the parties must have cohabited prior to death. The claim will be considered after any claim from the deceased's cohabitant's surviving spouse/civil partner. The court will also look at any claims being made on the deceased's estate by his/her surviving children. The maximum amount which a cohabitant can claim will not exceed the amount which would have been available to a surviving spouse/civil partner. If successful, the applicant could be awarded a capital sum or have property transferred from the deceased's estate. If you want to provide for your cohabitant it is best to make a Will. Otherwise, he or she will have the cost and distress of having to raise a Court action very soon after your death.
Appointing an Executor:
An executor is someone who is appointed to help sort out your property after your death. This might include paying off any debts, dealing with the tax office and distributing the property. Most people appoint two executors.
You can appoint a professional person, such as your lawyer or bank manager but you should be aware that they may charge for this. People usually ask someone close to them such as their husband or wife and children.
The executors can employ lawyers to carry out work for them. The expense is met from the dead person's estate. The executor is legally responsible for any mistakes so it is worthwhile seeking legal advice and asking a lawyer to do the necessary administration.
If the estate is small your local Sheriff Clerk (a civil servant who can be found at your Sheriff Court) can assist in dealing with the estate without involving a lawyer. A "small estate" is one below a certain value (£30,000 @ May 2011).
Appointing a Guardian:
You can appoint someone to take over the same rights and responsibilities you have as a parent.
Preparing the Will
Your Solicitor will discuss your needs in detail.
Here is a checklist of what you need to think about:
- Prior Will:
If you have an old Will this should be destroyed after your new Will has been completed and signed.
You need to consider who you would like to deal with looking after your property (the Executor) and who you would wish to make decisions about your children (the Guardian). They may be the same person and may not.
You will need to think about who you wish to leave your property to. The following are examples.
- House - If you own a house or a share in one you can pass this on. You can also make a more complex arrangement where someone lives in your house during their lifetime but the house is owned by someone. (See the section called "Liferents")
- Specific items - If you have particular items, such as jewellery or a piece of furniture, which you would like to pass on to a relative or friend you can simply include this in your Will. This is known as a "specific legacy".
- Money - If you want to leave anyone, or your favourite charity or good cause, a sum of money you can make what is called a "pecuniary legacy".
- Residue - After all the above have been dealt with the property left over is called the residue. Think who you would like to have this. It is common to leave it to a surviving husband/wife/civil partner or to your children. If any of the people in these categories die before you it is possible for their share to be passed on to their own children or grandchildren (known as their representatives.)
- Liferent - In some circumstances you might wish someone to continue to use your property or money without actually owning it. For example, if you have a new partner you may wish them to be able to stay in your house after your death but also want to make sure your children inherit the property. This arrangement is called "Liferent and Fee". Your partner would be known as the "Liferenter" and your children the "Fiars". This is common in second marriages where there are children from the first marriage.
- Other issues to consider:
- If someone dies before you - If you are worried that some of the provisions of your Will might not be effective it is possible to put in a kind of "what if" provision. For example you could leave your residue to your husband/wife/civil partner "whom failing" your children. This would mean that if the first person died before or at the same time of you, your property could be passed on without the Will becoming invalid.
- Changes to your Will - It may be in the future that you wish to make further changes to your Will. The most formal way of doing this is to make a "codicil". This is a supplement to your original Will which can be prepared by your Solicitors. It is also possible to have a provision in your Will to allow any "informal writings" for example a list of legacies signed and dated by yourself to be treated as part of your Will.
- Funeral arrangements - Some people have strong feelings about how they would like their funeral to be conducted. It might be as simple as stating you would like to be cremated or buried or as detailed as choosing the music for your funeral, then you should consider the possibility that your taste in music could change over time!
- Legal rights:
Whatever you say in your Will a surviving husband/wife/civil partner and surviving children can make a claim for "legal rights". They do not need to and can sign a document to say they do not want to. But if there are children under 16 who are not capable of making this decision money from your estate should be set aside on their behalf.
This is a tax which is paid on the estate. At the moment it only applies to estate with a value of over £325,000 but this figure varies, as it is set in the Budget. The tax does not apply to money left to a husband/wife/civil partner and there are tax exemptions up to a certain value and for certain items such as wedding gifts. Your solicitor or the Capital Taxes Office in Edinburgh should be able to help you.
There is usually a clause in a Separation Agreement cancelling rights of inheritance.