Where there's a Will

Colin Carr has been advising clients on Wills for the past two decades. Here are his do’s and don’ts of making a Will.

If you’re thinking of preparing a Will, it’s important to know exactly what purpose it serves. A Will is also called a ‘Testamentary Writing’ and you may have heard the phrase ‘Last Will and Testament.’ In short, it’s a legally binding document that sets out your instructions as to who will inherit your Estate on your death.

It covers all property and financial matters such as pensions, insurance policies, digital assets, stocks and shares and business interests. It can also include your wishes as to who should look after any children under the age of sixteen if you are a sole parent, and also make provisions a trust fund for older children who you feel may squander an inheritance if given to them at too young an age.

The Will cannot preclude a spouse making certain claims on your Estate in respect of property or what is described as moveable Estate (cash, money in the bank, investments such as stocks and shares, cars, jewellery and the football season tickets!)

If you have reason to exclude a spouse (particularly if you are separated), it is essential that these matters are discussed with your solicitor at the time of preparing your Will. Similarly, if you hold property in joint names with an estranged spouse or partner and you have not completed a separation agreement, it is essential that you raise this with your solicitor. This will ensure there is no scope for a claim against your Estate that might be unfair.

For those who are not married but live with a partner, it is extremely important to complete a Will. There are some rights for a surviving partner on death but the process is extremely cumbersome and inflexible and involves an application to Court which many surviving partners miss to their detriment. Accordingly, partners who have been residing with each other for a period of time and wish to ensure their partner is provided for on death should make a Will.

We are often asked at what age you should complete a Will. There is no correct answer. Many people feel that they will live until they are 70 or 80 and delay the process, leaving loved ones to pick up the pieces in the event of their untimely death. The process of winding up an estate without a Will can be extremely lengthy and expensive as there is no legal instruction.

So, the simple rule is - if you have a partner, property, substantial assets or family, you should complete a Will, no matter your age.

The good news is that it is not an expensive process to complete a basic Will or to update an existing Will. The team at MacDonald Lynch will be happy to provide you with a quote. I would recommend updating your Will periodically, perhaps every 10 years, so that it better reflects your current circumstances.

One of the main features of a Will is that you can appoint your chosen friend, family member or professional to carry out your wishes after your death. It is always sensible to appoint more than one Executor. I normally recommend appointing an Executor who is a beneficiary to the Estate in some capacity, together with a professional such as a solicitor or accountant, particularly when dealing with a more complex financial estate. Again, when reviewing your Will you can always change your Executor.

DO IT YOURSELF WILLS

DIY or cheap online Wills may seem tempting but a simple mistake could prove costly! If your Will is incomplete or incorrect, your proposed beneficiaries could find that that they have no entitlement or end up in a protracted and costly dispute over their share of the Estate. Quite simply, if your Will is not valid when you die, it’s likely you will be deemed to have died ‘intestate’ and the Estate will be distributed in accordance with the rules and regulations of Scots Law, and not in accordance with your own wishes.

There are other matters to be considered in the preparation of a Will such as inheritance tax, digital assets and the placement of funds in trust for younger beneficiaries or children and adults who are physically or mentally incapacitated.

With all these matters, the team at MacDonald Lynch will be happy assist you in preparing a Will that best suits your own interests and intentions, leaving you secure in your mind that you have done the best for loved ones, family and friends.

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