19 Feb 2012

The Importance of Making a Will

The Importance of Making a Will

Ryan Fox, Associate, considers why you should have a Will in place at the time you complete a property purchase.

Ryan Fox, Associate, considers why you should have a Will in place at the time you complete a property purchase.

Whether you are purchasing a property for the first time, or moving up the property ladder, it is vital to have a Will prepared or have your existing Will reviewed and updated to ensure that your property, and your estate generally, would pass in accordance with your own wishes in the event of your death. 

Who will inherit?

Even if you are married, living with a partner or have children, it is wrong to assume that they will automatically inherit your estate in the event of your death.  In the event of your death without a Will, known legally as dying ‘intestate’, the application of the default law can lead to devastating consequences for the family members you intended would inherit.  It can even result in other individuals inheriting in place of those you assumed would benefit.  The law of intestacy can be complicated and should be avoided by ensuring you have a Will in place. 

Cohabiting?

Couples who are unmarried or who have not registered a civil partnership in particular will benefit from having Wills in place.  Only couples who are living together in a close relationship (known as ‘cohabitees’) will have any potential entitlement on intestacy.  Under the Family (Scotland) Act 2006 Act, on intestacy a surviving cohabitee can apply for a share in the predeceasing cohabitee’s estate, but only up to that which a spouse or civil partner would have received.  However, such an application requires a Court action, which can be stressful, costly and cause division among the family.  The uncertainties surrounding the Court application mean that it should be a priority for cohabitees to have Wills, particularly if they own property together or have children.  If you live with your partner but are unmarried and do not have a Will then your estate, including a share in your property, may pass to your children, parents, siblings or even remoter family members, and not to your partner and this could well cause your partner serious financial hardship. 

Additional Benefits?

Your Will can do more than just allow you to choose who inherits and the benefit they should receive.  In a Will you can appoint who you would wish to act as guardians for your children, and specify at what age you would wish for your children or other young beneficiaries to inherit a share in your estate (on intestacy young beneficiaries inherit at age 16).   A Will should also authorise your executors to manage funds for young beneficiaries and can also provide for payments to be made to the guardians of young beneficiaries for their education, maintenance and benefit until they attain the age of inheritance.  On intestacy, if there are funds falling to young beneficiaries, executors often need to obtain the authority of the Court to invest and manage those funds.  You can also elect to let your loved ones know what arrangements you would like made for your funeral.  

Estate Planning?

Your Will can also, if properly drafted be used to reduce any tax liability on your death.  The law of intestacy on the other hand will not take into account any tax mitigation that a properly drafted Will and correct financial advice could offer.  Similarly, if the costs of long term residential care is a concern for any of your beneficiaries, a professionally drafted Will can take into account of that to ensure your assets are protected for future generations.  

Change in circumstances?

If your circumstances have changed, it is important that you make or review an existing Will to ensure that your assets are distributed according to your wishes.  For example, if you have separated from a spouse or civil partner, but not formally divorced, that spouse may still have a claim on your estate on intestacy or if they remain named as a beneficiary in your Will.  On a more optimistic note, the birth of a child is another event which should prompt the making or review of a Will.  

Title Deeds

When purchasing a property we are often instructed to place in the deeds a ‘special destination’, allowing a person’s share in a property to automatically transfer to a designated person in the event of their death.  The destination usually works in favour of the joint owner or owners of the property, meaning that on the death of one owner title passes automatically to the surviving owners, and this mechanism is often referred to as a 'survivorship destination' as a result.  While often convenient for young couples, reducing the burden of administration on a death, in later life it is often desirous to avoid survivorship destinations for estate planning purposes, whether to mitigate inheritance tax or possible liability to care home costs. 

Legal Rights

The provisions of a Will can be limited by the ability of children, spouses and civil partners to claim ‘legal rights’ from the deceased’s moveable estate.  The moveable estate is generally all assets due to the estate (often including a share of joint assets) except land and buildings.  If legal rights are a concern for you, as part of the process of drafting a Will for you, our solicitors can offer advice as to how legal rights these can be mitigated or avoided.  

In short, a Will allows you to clearly set out how you wish your estate to be distributed in the event of your death, to minimise the potential for family conflict and give you piece of mind that your loved ones are provided for.  However, the scope of a Will extends much further than that, allowing you to decide who cares for any young children you may have, and being a very important instrument for estate planning.

Ryan Fox, Associate


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