Making a Will is something that is often thought about but rarely becomes a priority, More often than not, you just ‘never get around to making one’. However, in today’s society it is becoming ever more important to make sure that you have a valid Will in place so that you can regulate what you want to happen to your estate in the event
As the traditional family dynamic evolves and there are more and more ‘reconstituted families’ (those families where a spouse has been married previously and/or there are step-children) it is important to ensure that such circumstances are considered in a Will in order to prevent what may be perceived as unfairness.
Legal Rights
Under Scottish Succession law, marriage and blood relationships take priority when it comes to settling the estate of a deceased person. Even if you have a Will in place, the law allows for the deceased’s spouse and children certain rights of inheritance. These rights , known as ‘Legal Rights’ mean that the surviving spouse or civil partner are entitled to one-third of the deceased’s moveable estate (bank accounts, business assets and investments etc) if the deceased left children or descendants of children, or one-half of the moveable estate if the deceased left no children or descendants.
If the deceased left children or descendants of children, then such children and descendants are entitled to one-third of the deceased’s moveable estate if there is a surviving spouse or civil partner, or one-half of the moveable estate if there is no surviving spouse or civil partner.
If the surviving spouse, civil partner or children have rights under the terms of the deceased’s Will, they must chose whether to accept the terms of the Will or to claim their Legal Rights. They are not entitled to both. For example; if the deceased left £1,000 to his child and his moveable estate was worth £20,000, his child could either accept the £1,000 or claim his/her Legal rights which would result in them instead inheriting £6,600.
It is also important to note that step-children have no automatic right to benefit from the estate of their step-parent. If the step-parent wishes for their step-child to inherit from their estate then they must ensure that they make specific provision for this in their Will.
Why make a Will?
At this point, you may be wondering why it is really worthwhile to make a Will or even update your current Will, especially if your wishes can be disregarded in the light of Legal Rights. The true importance of making a Will is evident if you have experienced a life changing event such as marriage, entering into a civil partnership, or getting divorced.
In England, Wales and Northern Ireland, marriage or the registration of a civil partnership can revoke a previously made Will. However, under Scots Law, neither marriage nor the registration of a civil partnership has the effect of revoking a previous Will. Also, if your relationship ends (either by divorce or by the dissolution of your civil partnership) your ex-spouse or civil partner is not automatically written out of your Will. It is important that you reassess your circumstances regularly to ensure your estate is protected from those who are no longer a part of your life.
And If I don’t make a Will?
If you chose not to make a Will, or due to circumstances are unable to do so, then your estate will be dealt with under the Laws of Intestacy in Scotland.
The Laws of Intestacy in Scotland are as follows:-
‘Prior Rights’
After debts and other liabilities have been met, the surviving spouse or civil partner has certain ‘prior rights’ to the deceased’s estate. For instance they are automatically entitled to up to a £300,000 share of the dwelling house in which they were resident in at the time of the deceased’s death. They are also entitled up to the value of £24,000 in furnishings and furniture.
The surviving spouse or civil partner is also entitled to the first £42,000 of the estate if the deceased had children or descendants of children. If the deceased did not have children or descendants of children, then the surviving spouse or civil partner would be entitled to the first £75,000 of the deceased’s estate. Prior rights are the first claim on the estate.
‘Legal Rights’
After prior rights have been dealt with, the ‘Legal Rights’ claim comes into force. The provisions for ‘Legal Rights’ are the exact same as discussed above’
‘Other Rights’
Once Prior Rights and Legal Rights have been dealt with, the remainder of the estate is devolved (without differentiating between the heritable and moveable estate) in a specific order, with any surviving relative in an earlier group taking precedence over those in the latter.
The effects of not making a Will
Generally, there are a number of consequences which can arise as a result of you not making a Will. For instance: - the Court will have to appoint an individual to act as your Executor; There would be an increase of costs incurred by the estate and possible delays; Any children that you have would automatically inherit their share of the estate at the age of 16. If a Will had been drawn up, payment of their inheritance could have been deferred until they reach the age of 18 or 21 and a Trust could be set up to ensure their needs are met until they reach this age; Ultimately your wishes may not be taken into account when your estate is distributed.
‘The reconstituted Family’
As previously discussed, it is becoming more common for an individual to remarry and as a result find themselves in a ‘second family’ scenario. In such circumstance, the effects of not making a Will can have a significant impact on the distribution of your estate.
For Example:-
A marries B. They have two children, X and Y. A then dies. B inherits all of A’s property. Later on, A gets remarried to C. C has a child from his previous marriage, known as Z. A dies and all of A’s property is inherited by C. When C dies without a will, all of C’s property is inherited by Z. This means that X and Y do not inherit anything even though C’s initial wealth was inherited from their mother’s estate.
There are a number of ways to prevent such outcomes. The most effective way is to make a Will!
For more information or advice on making a Will and Succession Law in Scotland please contact us on 0141 221 1919.
