12 Dec 2014
Wills, Trusts and Executries Associate, Ryan Fox, reiterates the importance of a Will.
In my experience solicitors are as lax as everyone else when it comes to ensuring they have a Will in place, but they should know better. The preparation of a Will is one of the most important things you can do, and I am of the view everyone should have a Will.
The main purpose of a Will is, of course, to ensure that your estate passes to your beneficiaries in line with your wishes. If there is no Will in place, the default law of ‘intestate’ succession applies. Other than adjustments to reflect the increasing value of estates, giving succession rights to civil partners and enabling a cohabitant to make a claim on an intestate estate (which, if anything, creates a high degree of uncertainty), the rules governing the division of intestate estates have remained largely unchanged since 1964. It is fair to say these rules, envisaged over 50 years ago, no longer reflect the more complex nature of the typical modern family unit, and the application of the provisions in the Succession (Scotland) Act 1964 can have unexpected, or unintended consequences. For greater certainty that your estate will pass in line with your wishes, a Will is essential.
The presence of a Will simplifies the administration of an estate, usually precluding the need to have executors appointed by the Court and the requirement for the executors to obtain ‘Caution’ (a guarantee, entered into by the executors and countersigned by an insurance company, that the estate will be properly distributed). This saves time and expense, and takes pressure off the executors and beneficiaries during what is a particularly distressing period.
For clients with higher value estates or more complex family circumstances, Wills also provide numerous estate planning opportunities. A Will can be framed to mitigate tax or a surviving spouse or partner’s exposure to care home costs, maximising the long term benefit for children or remoter descendants. Additionally, increasing numbers of clients find themselves trying to balance the potentially competing interests of beneficiaries (such as a surviving spouse or partner on the one hand and children to a previous relationship on the other) or looking to make provision for vulnerable beneficiaries (including younger family members, or those with disabilities or an alcohol or drug dependency). All of these can be addressed through appropriate provisions in a Will.
A Will also provides scope to make ancillary provisions that can be as important as outlining the distribution of your estate, such as specifying funeral rrangements or appointing guardians for young children.
Essentially, a Will provides you with the peace of mind of knowing that, in the event of your death, your affairs are in order, although it is important that anyone preparing a Will takes professional advice to ensure it is properly drafted and executed. It is also crucial that any Will already in place is regularly reviewed so that the provisions remain effective and relevant following any change in your circumstances.
Preparing or reviewing a Will through a solicitor is usually a straight forward and inexpensive process. All our branch solicitors are experienced Will writers and we can provide the specialist advice required irrespective of the complexity of our clients’ personal and financial affairs.
To speak to one of our solicitors about a Will, click here.