We understand that dying, death and bereavement can often be a difficult conversation to have. It may be hard to know where to begin with such a conversation and what should be discussed to prepare for death. Generally, the way in which our society deals with these uncomfortable conversations is to not have them at all. Having, and encouraging, these discussions allow us to plan for life and makes it more likely that you, and your loved ones, will cope better practically and emotionally when dealing with it.
A Will is a legal written document that specifies where and to whom you wish your property and possessions – known as your ‘estate’ – to be distributed in the event of your death.
Most people assume that they do not need a Will because their affairs are so simple that they do not think it is necessary; or that their assets will automatically pass to the person to whom they would wish to benefit. Neither of which is always the case.
In Scotland, if you die without a legally valid Will in place, then you will have no control over who inherits your home, money and possessions. This is called dying ‘intestate’ and in these circumstances, the law will determine which of your relatives are entitled to receive what from your estate.
The rules of intestacy do not always accommodate for modern family relationships. Separations, remarriages, stepchildren and cohabiting couples are common in society today but are not recognised or considered when dealing with the succession of an intestate estate.
Ultimately, without having your say over what should happen to your estate when you die, everything you own could be inherited by someone who you would not have chosen. This means that some of your loved ones may not be provided for in the way you would have wanted.
One of the first things you will need to consider when having your Will prepared is the appointment of executors. Your executors will deal with the administration of your estate after your death. Their primary responsibility is to identify and ingather the assets within your estate and distribute them according to your Will. They will also be responsible for paying any tax or debts due by your estate. You should appoint at least two Executors: they can be appointed jointly, or one whom failing another. It is also possible to appoint a professional to act, such as our Trustee company, Dallas McMillan Trustees Company Limited.
Once you have considered who wish to appoint as your executors, the next thing to think about is whether you would like to leave any specific requests – known as legacies. Your Will can contain specific legacies of particular items (such as your property, items of jewellery or even your pets!) or fixed sums of cash to individuals or charities. It is not essential to include legacies if you do not want to. Legacies are paid free of any tax unless you specify otherwise.
Anything left in your estate after payment of legacies, debts, expenses, and tax is known as the ‘residue’ of your estate. It is essential to specify who you want to receive the residue. You should also consider who you wish to receive the residue if your first choice of beneficiary dies before you. Please remember that it is possible that there will be no residue left if your estate is used to pay debts, expenses, tax, and legacies.
In most cases, you will be happy for your beneficiaries to receive any assets outright. However, in some cases, it may be appropriate to include trust provisions to hold and manage the assets for a beneficiary, particularly if they are young or vulnerable. If you do not include trust provisions, then a beneficiary will receive the funds outright when they reach the age of sixteen.
If you have children under the age of sixteen, it is important to identify who you would want to look after them in the event of your death. If another person has parental responsibilities for your children (e.g. your spouse/their own parent) then this would only apply if that person died too. To avoid conflict, you should appoint a single person or a cohabiting couple. Again, you might like to think about substitute guardians in the event your first-choice guardian is unable to act.
You should review your Will on a regular basis – we would suggest at least every five years – in case your circumstances have changed. It may not necessarily need updated this often, but it is good to check it to ensure that it still meets your wishes.
If you have any questions about preparing or updating your Will, please contact me by email (This email address is being protected from spambots. You need JavaScript enabled to view it.) or by calling 0141 333 6750 and ask to speak to me or a member of our Private Client Department.
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