A Will is a legal document that takes effect once you die. Anyone in Scotland can write a Will from age 12. When you die everything you own, and all the debts you owe, are regarded as your 'estate'.
If you die without leaving a Will, then there are rules which govern how your estate is divided, known as the rules of 'intestacy'. Often these rules are contrary to how many of us would like our estate divided - these rules provide that the bulk of the estate will pass to those closely biologically related to us, irrespective of our actual relationship with them. Neither you, nor your loved ones, have any control over how your estate is divided if you die without a Will and those rules must be applied.
If your estate cannot be fully divided and paid to nominated persons in accordance with those rules of intestacy, it may go to the Crown as 'the ultimate heir' - even if you had shared your life with someone.
To avoid this situation, you can discuss your wishes and those closest to you in your life with one of our lawyers. We can then help you to draft a Will that accurately reflects how you would wish for your estate to be divided after you pass away.
Those who are entitled to inherit are known as your "Beneficiaries". They can inherit something specific, or your overall estate. If you would like to leave a particular item or a monetary sum to a person then you can do so. Charities can also be beneficiaries. There is no limit to who can be a beneficiary and it can be anyone you wish and not just those who would otherwise benefit under the rules of intestacy.
It is however also worth noting that certain beneficiaries have an automatic right to inherit from your estate, regardless of whether they are named in your Will. These individuals are your spouse and your children. We can give you further advice and information on this.
Inheritance tax planning is an important part of making a will and planning for the future. Our lawyers can work with you to evaluate your assets and ensure that your estate is planned as efficiently as possible. This will allow your loved ones to benefit from the maximum amount due to them after you pass away.
You can appoint the people responsible for overseeing your affairs on death, known as your 'Executors'. Choosing those you wish to be responsible for the management and distribution of your estate after you pass away can be a difficult task.
However, if you are prepared, you will have time to discuss the position with those you feel would be the best candidates. Naming your Executors in your Will can avoid difficulty for your loved ones at a later stage, as the role of the executor has already been discussed and agreed.
Your Executor should be someone that you trust to act in accordance with your wishes. It is also sensible to appoint at least two executors. When appointing more than one executor, you can make a decision about whether they are to act jointly, or whether you appoint them in a "whom failing" capacity. This means that if one of your executors is not able to act then there is someone else who is able to step into that role.
You can tell your Executors in your Will how you would want your funeral to be arranged, in particular you can let them know whether you would want to be buried or cremated.
Making a will can speed up the process of winding up the estate, sparing your loved ones further pain.
Death is a difficult time for everyone, but where you have not left a Will or properly updated your Will, this can cause tension between family members, and may even result in a dispute about what is to happen to your estate. Making a Will ensures that your loved ones are clear on your wishes, not only for how your estate should be divided but also for your funeral arrangements and who should get to keep any sentimental items you leave behind.
You should review your Will regularly to ensure that if reflects you wishes. In particular, you should consider reviewing your Will following separation or divorce, if you have a child, or you acquire or inherit property.
Why get Power of Attorney?
Power of Attorneys are documents that come into effect while you are still alive. They are different to Wills which only regulate what is to happen after you have died.
Granting a Power of Attorney allows you to decide who can do things for you if you are no longer able to do so (known as becoming incapax). Incapacity can happen for a variety of reasons, some of which may be short-term (such as being involved in an accident) or longer-term (such as a degenerative condition like Alzheimer's) but, where you do not have a nominated Attorney and you do become incapax no one will have the automatic power to make decisions on your behalf. For this reason, a Power of Attorney is a very important matter. If you do not grant a Power of Attorney, and you lose capacity, a Guardianship Order will have to be sought to grant authority to a person to manage your affairs on your behalf. This can be time-consuming and expensive.
When you appoint an Attorney, you can choose to appoint them to have control over your finances (known as Continuing), or over decisions about your Welfare, or both. You can choose when a Continuing Attorney can start acting on your behalf however, for a Welfare Attorney, they can only make decisions about your personal welfare when you yourself are no longer able to do so. When your Attorney is acting on your behalf they should act in your best interests at all times when making decisions on your behalf.
You can appoint anyone that you wish to be your Attorney. They should be over sixteen and you should trust that they will act in your best interests. Because of the nature of what they will be doing for you, you should appoint someone who knows you and your wishes well.
You do not have to appoint the same person(s) to act as Attorneys for financial and welfare powers if you do not want to. For example, there may be one person that you would want to deal with your finances but someone else to make decisions about your welfare. This is entirely possible.
You should speak to your proposed Attorneys to make sure that they are content to fulfil the role, and your lawyer will have to get confirmation from them prior to executing the Power of Attorney document.
For financial powers, you can choose when you want your Attorney to have these powers. It can either be (1) immediately or (2) when you lose capacity and can no longer make decisions or (3) in circumstances where you have signed a pre-agreed document 'triggering' the POA at a date after signing but whilst you still have capacity. We can discuss all of these options with you to decide which works best for you.
For welfare powers, these only become effective if you lose capacity.
In both circumstances, where capacity is to be assessed, we also need to outline who you wish to make this assessment. Again, we can discuss fully with you what is involved in this.
Where someone becomes incapable of dealing with matters on their own behalf (incapax) then a Guardianship order may be required to allow relatives or friends to manage their physical and financial affairs where there is not already a Power of Attorney in place. The effect of a Guardianship Order can be very similar to that of a Power of Attorney however a Guardianship order is a Court order. In order to be granted a court action must be raised and various reports obtained and submitted to the Court in order for a Sheriff to decide upon matters. Accordingly, the process can become very complex. This is an area we can assist on and, if you think is applicable to someone that you require to make decisions in relation to, please do get in touch.
The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Clarity Simplicity Ltd.