making a Will is the only way to ensure that your wishes will be fully met after you die

No one likes to think about dying which is why making a Will can be such an emotive subject – something we know we should do but don’t always follow through.

The reality is that even if you don’t believe you have very much to pass on, making a Will is the only way to ensure that your wishes will be fully met after you die.

If that’s not motivation enough, making a Will also ensures that your family are free from the added stressful burden of sorting out your affairs and having your estate distributed in accordance with Scottish rules of intestacy, which can be a lengthy, expensive and complicated legal procedure.

There are many things to consider when making a Will and our dedicated team will help you through the process and guide you in expressing your wishes through your Will.

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Making a Will

Your Executors act as the legal link between the deceased and the beneficiaries. We recommend that your Will nominates two executors, in case the first one dies before you.

The first Executor can be your spouse, partner or another member of the family. The second Executor can be another member of the family, a friend, or a professional advisor. Many people appoint their Solicitor as Executor to ensure impartiality and to avoid family conflict. This is also important if a Trust is created for young beneficiaries. It is however, entirely up to you.

Being named as an Executor brings with it complicated and sometimes onerous duties when someone dies and often takes months to complete. It is important to choose the right Executor because they are ultimately personally liable for any mistakes made during the course of winding up the estate.

Although not exhaustive, here is a summary of responsibilities:

  • Collecting all of the assets of the estate
  • Valuing the estate
  • Applying for Grant of Confirmation
  • Ensuring all debts, inheritance tax, income tax and capital gains tax are paid
  • Distributing the remainder of the estate in accordance with your Will
  • Recording your actions and provide a copy of the Estate Accounts to the beneficiaries

Careful thought needs to be given to whom to appoint to this role.

Legacies can be either cash or specific items that you wish to pass on. We will need the names and addresses of the beneficiaries and details of the item or sum of money you propose to leave

The residue is what is left after paying debts, funeral expenses, any tax and legacies and normally forms the largest part of your estate.

In normal circumstances everything is left to your spouse or partner; and on the death of the survivor, everything is divided equally among the couple’s children if applicable. If one of the children has died before you, any remaining children would take the share that would otherwise have gone to the predeceased son or daughter.

Other situations require more careful consideration. If one or both spouses or partners have a family from a previous relationship, care must be taken to ensure that one party’s children are not left out because one party dies before the other leaving everything to the other party.

On the death of the survivor, the survivor’s children could succeed to the whole estate (ie both estates) meaning that the family of the first party to die could be left with nothing.

We will discuss ways of drafting the Will so that everything is done fairly and none of the children are prejudiced by the accident of which partner dies first.

If you die when any of the beneficiaries are under an age you specify in the Will (normally between the age of 18 up until the age of 25), a Trust can be formed which provides for investment of the beneficiary’s share; your Executors become Trustees and they have power to apply the income and the capital for the maintenance, education or benefit of such beneficiaries until they attain the age you have specified.

You can indicate in your Will who you would want to be appointed Guardians to your children if you die.

The Trust funds referred to above would help support your children and be used to financially assist their maintenance and education.

You can, if you wish, specify in your Will your funeral instructions.

This is not essential if your family is aware of your wishes but if you have no close family or have specific religious or funeral service requirements, we will include your wishes in your Will.

If there is no Will, we have to establish who has the legal right to be appointed as Executor—this is normally the main beneficiary such as the spouse or partner.

Where a family member who is not the spouse wants to be appointed as Executor, the law requires that an insurance policy called a Bond of Caution is taken out before Confirmation is applied for, to protect the Executor against future claims on the Estate.

We then submit a formal Writ to the Sheriff Court requesting the appointment of the Executor.

If the value of the estate is below certain limits, Banks and Insurance companies will sometimes pay out to the beneficiary without Confirmation.

They will require an Indemnity to be signed in the presence of a Notary Public to protect against them paying out to the wrong person – we are Solicitors and Notaries and will assist you with this documentation.

When the estate is ingathered it is distributed in accordance with the will.

If there is no will the law determines the scheme of division based on the closeness to the deceased of the surviving family members. We will advise you on this.