What you need to know when writing a Will
No-one likes to think about death, but in the world of the solicitor, it is one of our regular topics of conversation. It’s common for individuals to overlook the importance of writing a will until later in life, however, it’s recommended that you have a will in place as soon as possible. When you start considering writing a will, there are various stages in getting the job done.
The most important piece of advice we could give is once started, get it finished. Too often we see or talk to clients who enquire about the process, the costs, the technicalities, and then do nothing, sometimes until it is too late. Once you decide to make a will, or wills if you are a couple, then don’t stop, pause or put it to one side.
Without a signed, professionally-made will, the law of Scotland imposes a fixed scheme of division on the estate of a person dying, this is known as intestacy. The full details are complex, but any assumption that everything will just go to my spouse, or that my kids will have to wait until that spouse dies to get their share, are wide of the mark. In some cases, there can be gruesome scenarios in which even the deceased’s brothers and sisters come in to collect part of the estate before a wife or husband.
Added to that, the costs and hassle of winding up an estate without a will are higher. So it makes sense to get a will done and dusted in good time. For clients who are perhaps in a second relationship with children from an earlier one, you can avoid considerable bad feelings and confusion if a comprehensive settlement is put together formally and signed off.
So what does a will contain, and what do you need to do to assist your lawyer’s task in writing it?
3 things you need to consider when writing a will
First is the choice of executor, this can be any adult person, a spouse/partner, a sibling, a grown-up child, a friend, or a professional appointee. Choose someone you trust and is capable of doing the job (this often involves passing the actual work on to the solicitor) and at least one back-up executor, so that where a husband and wife are each other’s choice as executor, which is common, then if they both die in the same accident there is still someone on hand to sort out the estate.
Second is deciding on any specific bequests. This might be family jewellery being passed on to a daughter, a car left to the eldest child, a gift of money to a charity, the house to the child who stayed home to look after the aged parents, a favourite painting going to a close friend, and more. Without a will, a verbal promise to leave an item or a sum is not legally recognised or enforceable.
And third is the residue. That word makes it sound like a minor share of the estate left over, but in most situations, it is the bulk of the assets or the whole, after any debts and costs are paid. So this residue may be made up of bank accounts, insurance pay-outs, property, shares, premium bonds, investments, all totalled up and ready for division. The division may be equal or unequal percentage shares to all the children – or only to some of them if the parent sees fit. A deceased person without children may share the residue among siblings or friends, or a combination of both. And those charities, instead of getting a specific sum of money, might be left 25% of the residue or suchlike.
Frankly, the possibilities are endless, every estate is different, as is every client who comes to us to make a will. So before talking to a solicitor, we always suggest doing the following.
Work out what you want to happen when you die. If you are a couple planning wills together, decide not just what is to happen on the first death, statistically one of you is likely to go before the other, but what is to be the division and distribution of the estate if you both die together, or on the second death if you are leaving everything initially to each other. Ideally, make a note of this and talk it through with the lawyer.
Additionally, be sure to tot up what you actually have by way of assets, property, and debts. We do not know what we will have by way of wealth at the moment of passing, but it helps in constructing a will to tell the lawyer what you own at the moment. A will can later be changed or tweaked from time to time to reflect changes in fortune or circumstances, but we do need to know where the starting point is. A note of wealth will also help us advise you on matters of potential inheritance tax exposure.
In a short blog like this all we can do is describe the basics. It is very likely your lawyer will need to go into some depth on these matters in order to fully appreciate and advise on will structure and content.
But we have to begin somewhere, so being armed with a list of assets, and knowing the preferred outcomes of the estate will get us all off to a flying start.