Making a Will is the easiest and only way to ensure your wishes are properly executed upon your passing. A Will is a document which explicitly states the desires of the deceased and allows for loved ones to be taken care of in a way concurrent with the personal preferences of the recently passed. Without a valid Will, the estate will fall into what is known as “intestacy”. In this long and arduous process, loved ones are still entitled to the deceased’s estate, but their entitlement consists of guidelines drawn out by the government.
Over half of Scotland’s population does not have a Will, which is a staggering figure. To ensure one’s family is secure during the bereavement process, it is highly suggested to create a Will, which may be amended at any time.
Why is a Will Important?
A Will is a legal document that sets out the final testamentary intentions of the deceased. There are only four main requirements: the individual must have capacity and the will must be written, signed and witnessed. They do not need to be intricate nor in any specific format or typeset: they can be written on a napkin so long as they fit the requirements set out for a valid Will in Scots law.
Wills may also be amended – this is known as a codicil. An example of when a codicil may be written is if a new family member is born and the testator desires to include them in the final Will. A Will may also be destroyed and replaced with a wholly new document. If the Will is not destroyed and a second Will is made, a lengthy legal process as to the intention of the testator’s Will, will be lodged. This is a confusing process, but in most cases, the first draft of the Will will be assumed valid. To properly access how to amend or destroy a Will, speaking with a solicitor as soon as possible is greatly encouraged.
Am I Obliged to Accept What is Given in a Will?
The greatest gift a deceased may give their family or close friends, as well as charities, after their passing is a Will. It ensures the bereaved may focus on the loss of their beloved and not a lengthy legal battle. However, if the family believes they were not given a fair amount, they may apply for what is known as their legal rights. Such rights insure the surviving spouse or civil partner as well as child or children are granted some financial compensation from the deceased’s moveable estate (money). An individual must choose between claiming their legal rights or the rights bestowed upon them in the Will; they cannot elect to receive both. The rights are divided among the parties: if the deceased has no surviving children, the spouse or civil partner is entitled to half. If there are children, it divides by a third. This process is complicated and a solicitor will outline this option if elected.
A testator does not need to give all of their estate to family or friends. If the testator sees fit, they may leave part or all of their estate to a legacy for a charity or benevolent association. However the testator decides to divide their assets is their choice and a Will ensures this. Without one, the state will become involved and the guidelines of intestacy will be applied. Contact our office if you would like to consider your options under a current valid Will or one being constructed.
What is Intestacy?
Intestacy is when an individual dies without a valid Will. In this case, the estate is distributed after all debts and other liabilities have been satisfied. Examples of such prior obligations are funeral costs and credit debts. Prior rights is an important facet of Scots Law; it ensures the spouse or civil partner is entitled to a portion of the estate. The spouse or civil partner is entitled to the dwelling house of the deceased if they were resident at the time of death; plus, up to the value of £24,000 of any furnishings and furniture of that house. The spouse or civil partner is also entitled to the first £75,000 if the deceased left no children or descendants. And the first £42,000 out of the estate if the deceased left children or descendants of children.
Such prior rights occur before legal rights, as explored above. If the deceased does not have any immediate family, the estate falls to the Crown. The process of intestacy is confusing, long, and not worth such pain and suffering. To avoid this, simply write a Will. Whilst, this may be a tiresome and frightening process, solicitors are here to help. Do not fear the inevitable, be prepared for it.
How to Avoid Intestacy
The only way to avoid intestacy is to have a valid Will. Even though a Will is easily constructed and contains very few guidelines of what makes it valid, individuals are encouraged to seek the help from a solicitor. Gibson Kerr is a family-run firm established in Edinburgh for over 100 years. With locations in two of Scotland’s major cities: Edinburgh and Glasgow, individuals are ensured quality of service from solicitors who understand the sensitivity of making a Will. Many avoid the process of making one because death is nothing anyone wants to look forward to, but in the least, think of it is as taking care of loved ones. They take care of you, take care of them. Contact our firm of solicitors through our website. On the left-hand side you will find a form to leave your information. We will reply to your enquiry as soon as possible. If you cannot wait, please phone us anytime.