Regardless of how much money, property or how many possessions you think you have, it is always important for you to make a Will.
First and foremost, a Will makes it much easier for your family and friends to sort your affairs following your death. Making a Will saves your loved ones unnecessary stress and time at an already difficult period.
What will happen to my estate if I don’t make a Will?
If you do not make a Will, the law will decide how your estate is distributed – and this might not be in line with your wishes. If you die without making a Will, the estate is said to be ‘intestate’ and the rules of intestate succession come into play.
If you die without a Will, your spouse (or civil partner) is entitled to ‘Prior Rights’ after the deduction of debts and liabilities. Your spouse’s entitlement is capped at certain statutory limits, and he or she will not necessary inherit the whole estate. The extent to which your spouse will inherit will depend on the assets you own at the time of your death, and whether you have any children, siblings or other relatives.
Sometimes, an estate will be used up entirely by Prior Rights, leaving nothing for children. This situation can occur even if you and your spouse were separated at the time of your death.
If your estate is not used up entirely by Prior Rights, your children will have an entitlement, but this does not extend to step children.
If you die without children, your siblings will inherit instead. Indeed, if you have no spouse or children, your siblings will inherit everything. The law decides who gets what and how much, regardless of what your relationship was like at the time of death. In theory, there is a possibility that a long lost brother, whom you have not spoken to in 20 years, could inherit your whole estate. It is only by leaving a Will in place that your true wishes will be met.
I am not married – will my cohabiting partner inherit if I don’t have a Will?
It is a common misconception that couples who are not married or in a registered civil partnership automatically inherit from one another when one partner dies without a Will. If you are not married or in a civil partnership, your partner is not legally entitled to anything when you die. If you are living together as a couple, your cohabiting partner will have to make a claim to the court on your death within strict time limits, and any award is made at the discretion of the Court, on a case-by-case basis.
How can a Will help my children?
In addition to ensuring that your children are financially provided for, a Will ensures that the deceased’s children will be protected should their main carer die. You can name a guardian in your Will and leave instructions for how they should care for your children. In addition, you may wish to consider setting up a trust for your children in your Will.
There are various types of trust arrangements, some of which are particularly useful for second marriages if you wish to protect the interest of children from an earlier marriage, or relationship, whilst still providing for your current partner.
How can a Will help with tax planning?
A Will can help reduce the amount of Inheritance Tax that might be payable on your estate by making sure estate passes to exempt beneficiaries and/or making use of the various exemptions and allowances that exist.
Can’t I just download a free Will from the internet?
‘Free’ Wills are often written with English rules in mind and if you live in Scotland, for example, a ‘free’ Will is unlikely to be recognised as formally valid under Scots Law. ‘Free’ Will-writing services rarely take into account your personal circumstances, so there is no guarantee that your estate will benefit from all the available tax allowances, or that your Will will produce the result you want. In a nutshell, ‘free’ Wills can often result in unnecessary costs, delays and complexities further down the line, and end up costing your family dearly, so it’s always best to speak to a lawyer.
I would like to make a Will, what now?
If you would like to arrange an appointment or find out more about our Will-writing services or estate planning, please contact Jane Whyte, Wealth Protection specialist on 0141 204 5115 or at jane@cannonslaw.com.
Written by Jane Whyte.
