According to a recent article, 57% of Scots do not have a valid Will. The figure may indeed be higher than this. Spending time and money preparing a Will, particularly when you are young and healthy may seem like an unnecessary expense or at least one to postpone.
Contrary to popular belief, however, if you don't have a Will, your nearest and dearest may not inherit everything you own and, even if they are first in line to inherit by law, the process will be more expensive and complicated for them without a Will.
In my opinion, your Will is the most important document you will ever sign and is the only way of ensuring your wishes will be followed after your death. With that in mind, who should you approach to assist with this? Can you do it yourself, either from scratch or by purchasing a £9.99 DIY Will pack online? What is really the difference between a DIY or handwritten Will and paying a specialist in succession planning to do it for you?
In my experience, DIY Wills can often be riddled with problems and, more often than not, end up costing families much more money in the long run. People often think that their situation is completely straightforward, but if you have young children, a vulnerable family member, an estate which is subject to inheritance tax, a family member you don’t get on with, children from a previous relationship, a cohabiting partner - the list could go on - your Will probably needs some very careful consideration. Here are some common pitfalls which are often not addressed in a DIY Will.
A Scottish Will looks very different to an English Will and the legal signing requirements are very different. If you get this wrong and the Will does not comply with the signing requirements under Scots Law, your executors will need to make an application to Court to have this rectified before they can apply for Confirmation (Probate) to the estate. This often involves obtaining affidavit evidence from witnesses or from people who knew the deceased or even legal opinions from other solicitors.
Failure of executors and/or beneficiaries
If the Will fails to appoint executors or if the executors nominated have died or lost capacity, there may need to be a court appointment to have executors appointed. A professionally drafted Will should pre-empt the situation that your appointed executor predeceases or loses mental capacity by including substitute executors.
DIY Wills often don't make provision for beneficiaries dying before the testator either. It is essential when drawing up a Will that it is absolutely clear who should benefit from any part of the estate if one or more beneficiaries have died. If the Will doesn't properly cover this, then that part of the estate falls to be divided among the nearest family members according to Scots law or, if there are no surviving family or if they cannot be traced, this will fall to the Crown.
Another common trap with DIY Wills is the lack of consideration for how children's inheritances will be managed. In Scotland, children become entitled to their share of the estate on reaching the age of 16. This can be managed properly through a trust which needs to be thought out in advance. Trust provisions need to be drafted with care. A balance should be struck between safeguarding the assets until an appropriate time yet providing the trustees with enough flexibility to access the trust fund to reflect changes in the child's circumstances and to cover such expenses as the child's school fees, holidays or a deposit for a first property.
The same applies to vulnerable beneficiaries. If you have a child or family member with disabilities, how will their inheritance be managed? It's also important to consider the impact their inheritance might have on any benefits they receive or may be entitled to in the future.
Current succession laws
What is a "normal" family these days? I don't think such a thing exists. Everyone's circumstances are so different. Step families, second, third and fourth marriages, cohabiting couples, are all very commonplace. Unfortunately, Scottish succession law hasn't kept up with all of these changes in society and although this is currently under review at the moment, it is likely to be some time before legislation is enacted and better aligned with reality. If you die without a Will, there is every chance that the current law does not reflect your situation or your wishes.
If these are the hidden traps, what are you paying for with a professionally drafted Will?
Most importantly, when you instruct a solicitor, you are not just paying for the Will itself but for the associated advice. This is just as valuable. Here are some factors which should be taken into account when drafting your Will.
Few people are comfortable with the idea of their hard-earned assets being taxed at 40% on their death. How will this affect you and your family? A solicitor will consider any planning which can be done during your lifetime or incorporated into your Will to reduce your likely tax liability.
In Scotland, children, spouses and civil partners are entitled to receive a share of your estate on death even if you haven't mentioned them in your Will. This even applies to financially independent adult children even though your Will leaves everything to your spouse or civil partner.
It is essential that you understand how legal rights would apply to your situation and how this might be dealt with and planned for. We are also anticipating substantial reform of succession laws in Scotland over the next year or two and a good solicitor will be able to advise how these might affect your situation.
It's easy to think that your Will covers everything you own and will deal with the succession to your share of jointly owned property, your life policy proceeds, your pension and death in service benefits. This is not necessarily the case, however. It's important that you understand exactly who would benefit from all of these assets in the event of your death. A professional preparing your Will should review of all of these issues.
Finally, owning a holiday home abroad is not particularly uncommon in today's world with more and more people having foreign assets. Alternatively, many people now have a family member due to inherit under their Will who lives abroad or they themselves may have lived, worked or were born abroad. A solicitor will consider the implications of all of these things and advise on whether a separate Will should be prepared in that other country and of any UK tax implications which may arise.
Cost is often cited as a reason to avoid making a Will, or to go for a cheap DIY one. Why go to the expense of instructing a solicitor to draft a Will for you? Taking all of the above into account, however, can you really afford not to? If you would like any advice on succession planning, please contact Carryl Beveridge in our Asset Protection team. For more information on how we can support and guide you through the Will making process, read our Wills page.
The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers. Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.