The Drever & Heddle Guide to Wills
Why make a Will?
It is impossible to over emphasize the importance of making a Will. You owe it to yourself, your spouse and your nearest and dearest to ensure that you leave a clear expression of your wishes. Everyone should make a Will and some of the main reasons are listed below:-
1. To allow you to decide who benefits from your estate.
If you leave no Will then the Laws of Intestacy dictate who benefits. The
rules regulating intestacy
cannot be expected to mach your wishes and can often produce a state of affairs
which would be
undesirable to you. Many people assume that if a husband and wife do not
make Wills then each will
receive the whole estate of the other but this is not necessarily the case.
The complex rules of an intestate
succession may result in remote relations having a claim on part of your
estate.
2. To avoid confusion. By appointing Executors (the individuals who will distribute your estate following the instructions set down in your Will) and narrating specific matters such as funeral arrangements a Will allows funeral arrangements and the administration of the estate to be moved forward efficiently and with the minimum of delay.
3. To avoid unnecessary disputes. At a difficult time, where there is no Will, there is the risk that a family can have differences of opinion and indeed fall out as they try to second guess your true wishes. This can result in needless and expensive disputes. A properly drafted Will, although it may give no reasons, is more likely to be accepted by the family as a true expression of your wishes.
4. To avoid unnecessary expense. With regards to the administration of the estate itself the procedure can become slower and more expensive if there is no Will. Firstly, the petition has to be lodged with the court to have an Executor appointed and there may be competing claims for that appointment. Secondly, an insurance bond has to be obtained and lodged with the Sheriff Court.
5. To reduce Inheritance Tax. Inheritance Tax is charged at 40% after your estate exceeds £275,000. Given recent increases in the value of property in Orkney many more people are now likely to be effected. With careful consideration of the full nature and extent of your estate a skilled draftsman might be able to save your family many thousands of pounds in Inheritance Tax. Preparing a Will gives you the opportunity to ensure that the effects of the tax system are minimised and can maximise the benefits for those who are left behind. A Will should be seen as a fundamental and essential part of any Inheritance Tax planning. 6. To aid Charities, deserving individuals and causes. The Law of Intestacy cannot cater for charities and therefore only you can insure that a deserving cause benefits by clearly stating your wishes in a valid Will.
Frequently Asked Questions
Q. Why should I make a Will?
A. To ensure that your wishes are carried out. The result under the Laws
of Intestacy may not be
what you expect.
Q. When do I need to make a Will?
A. It is never too early to prepare a Will and everyone should have a Will.
Q. Who can prepare a Will?
A. A Will is simply a written record that says who you want your money and
possessions to go to
when you die. Because it is an important document the Law specifies what
constitutes a valid
Will. In order to ensure that your Will is valid you should always discuss
matters with your
Solicitor.
Q. Can I change my Will?
A. Yes, a Will can be changed at any time.
Q. When should I review my Will?
A. Whenever there is any significant change in your life. Even when you do
not think there have
been any significant changes it is always wise to review your Wills, at the
very least, every 5 years.
Q. If I die without a Will will my spouse automatically receive all my possessions?
A. Not necessarily. The complex rules of intestate succession may result
in remote relations having
a claim on part of your estate.
Q. What must I leave to my spouse?
A. In Scotland a spouses cannot be easily disinherited. A Will can however
limit you’re his or her
claim to a share in your moveable property.
Q. What must I leave to my children?
A. In Scotland children cannot be easily disinherited. Again, if you make
a Will you can limit their
claim to a share of your moveable property.
Q. What if I own property outside Scotland?
A. This area can be very complicated it is important to discuss all such
matters with your Solicitor.
What happens depends on the law of the Country.
Q. My unmarried partner and I own the property jointly. What happens if
I die without leaving a
Will?
A. What happens will depend on the wording used when ownership was transferred
however the
laws of intestacy make no provision for an unmarried spouse. If you and your
unmarried partner
own property it is vital that both of you discuss matters with your Solicitors – only
a Will can
ensure that your partner is protected after your death..