Personal Law

How many of us can honestly say that we have made proper plans for the future? By that, I don’t mean planning our next holiday or social event. Rather, how many of us have an up-to-date will in place? Research suggests that fewer than half of us have wills and of those who do, few are updated to take account of changes in personal circumstances.

Granted, the topic of your will is not particularly cheerful, and it can therefore be easy to delay this exercise in favour of, well, more enjoyable tasks. I have heard many justifications from clients for postponing putting wills in place: “I don’t have time”, “I’ll do it next week” or, the somewhat more bizarre, “I’m not planning to die”. However, planning properly for our future, and also the future of our family, is something we should all be doing, regardless of age or wealth.

I have little doubt that most people reading this blog will have thought about important life-planning matters and know what they would like to happen when they die. Our job is to translate these thoughts into practical legal solutions and, in doing so, to provide both you and your loved ones with certainty and peace of mind. Yes – we are all busy, but there are several reasons why everyone should be taking the time now to instruct a will and to plan for the future:-

  • Having a will allows you to control how your estate is distributed on your death. Conversely, if you die without a will (known as dying “intestate”), it is the law that decides how your estate is distributed, meaning that those closest to you may get nothing and those you did not wish to benefit may get it all (including the taxman)! Bearing in mind that family structures have changed greatly since the laws on intestacy were established in 1964, it is highly unlikely that the distribution of your estate in these circumstances will accord with your wishes.
  • If you want to make provision for young children, a will can also be extremely important in terms of controlling when they receive assets on your death. In Scotland, the age of legal capacity is 16 years, and unless your will includes trust provisions, children will become entitled to the assets you have left them at this age. Including a trust in your will would postpone the age at which the child becomes entitled to the assets on your death, so that the child can benefit from them when they might need them the most, for example, to help with their education or to help them get a foot on the property ladder.
  • If you have young children, you can also appoint guardians to your children in your will, were you to die before they attained the age of 16. Having a will allows you to make an informed decision about who would care for your children in these circumstances, and without this guidance, the matter would be decided by the Court – a stressful, not to mention expensive process for your loved ones.
  • Your will gives you the opportunity to appoint executors, those being the people who are responsible for administering your estate and making important decisions when you are gone. By appointing those you know and trust, you will know that your affairs will be in safe hands.
  • You can also include funeral instructions in your will, should you have specific wishes. Including clear funeral instructions can also provide your family with helpful guidance at a time when they will be struggling to come to terms with your loss.
  • If drafted properly, wills can also be a very effective tool for inheritance tax planning, thereby preserving your assets and wealth for the ultimate benefit of your chosen beneficiaries.

Finally, if you already have a will, it is important that this is reviewed and updated regularly. It is only natural that our circumstances should change over time, and your will may no longer reflect your wishes or suit your current circumstances. For example, people named in your will may have passed away, relationships may have changed, you may now have children, your assets or wealth may have altered and, indeed, so may the law. The list goes on, but as any of these matters change, so should your will.

The loss of a loved one will be a difficult time for your family and friends and by taking an hour or two out of your lives just now to make a will, you could save them from a lot of unnecessary stress and expense when you die. What is more, a will is the only way to ensure that it is you, as opposed to the law, who decides who should benefit on your death.

If you would like to discuss instructing a new will, or updating an existing one, please get in touch with your usual contact in Brodies’ Personal & Family department, or telephone 0131 228 3777 to speak with a member of the team.

Nicola Neal

Associate at Brodies LLP
Nicola is an Associate in the Private Client department. She is involved in a broad range of work within the Wills Executry team. Nicola has experience and a particular interest in contentious Private Client matters, including challenges to the validity of wills by disappointed beneficiaries, claims by cohabitants on death and administering judicial factories.
Nicola Neal