There are a lot of reasons people avoid making a Will, but generally speaking, it’s just not a pleasant thing to think about. The problem with this is, administering and distributing an estate after death is more difficult without a Will and often leads to disputes, unnecessary tax bills, or wasted costs.
It is a common misconception that all assets will pass to a spouse or civil partner but, this is only the case in limited circumstances - and it depends upon the value of your estate and your immediate family. Your family may well know your wishes but without a Will, the law dictates who receives your estate.
Even if you think you have nothing now, you could be surprised when you do an inventory. Life insurance, pension policies, personal possessions…it all adds up.
How assets are distributed if you die without a Will
In Scotland when a person dies without a Will it is called dying intestate and there are laws of intestacy which determine how an estate is distributed.
In the first instance debts and certain liabilities must be paid from the dead person’s estate. Thereafter, certain beneficiaries have rights to claim from an intestate person’s estate. These rights are called prior rights and legal rights.
The prior rights must be satisfied first – these are in favour of the deceased person’s spouse or civil partner and are a share of the deceased’s house, furniture and money, subject to maximum financial limits. The prior rights of the spouse or civil partner have the potential to exhaust the deceased’s estate, but depending on the size of the estate, children of the deceased may also benefit from prior rights.
Next, the legal rights of any spouse or civil partner must be satisfied followed by the legal rights of any children. Legal rights include possessions not covered by the prior rights and are also subject to maximum financial limits.
Finally, the remaining estate - if any (called the free estate) - must be distributed according to a list of potential beneficiaries which are ranked in categories of priority and includes: children, parents and siblings, spouse or civil partner, uncles and aunts, grandparents, brothers and sisters of the grandparents and ancestors of the deceased person more distant than grandparents.
The nuances are confusing and the maximum financial limits can be changed so, if you don’t want to leave it to the law to determine how your estate is distributed you should make a Will. You should also consider replacing your Will upon certain life-events such as marriage, separation, divorce, birth of child etc.
Do you need a lawyer to prepare your Will?
You can download do-it-yourself Will templates from the internet or use non law-firm agencies to prepare one for you, but, it is always best to use a lawyer to undertake this work. A lawyer will explain the complexities and nuances you must consider to avoid unintended consequences for your loved ones. A lawyer can also keep your original Will in their safe ensuring it is not inadvertently lost.
Nobody likes to contemplate their death but it is something we can’t escape. A well-drafted Will, kept somewhere safe, makes life much easier for those left behind and ensures your wishes are carried out.