If you’ve ever thought of making a Will, you’ll immediately have found yourself mired in legal jargon, some of it in Latin or Scots. We clarify some of the key words and phrases
Lawyers often get the blame for the impenetrability of legal documents, but as a profession, and certainly at Lindsays, we’re aware of the need to talk in plain, everyday terms. Sadly, with Wills, much of the arcane language is embedded in the processes that apply when someone dies, so we’re forced to use it.
"When lawyers and Wills refer to someone's 'estate', it means everything they owned at the time of death."
To demystify some of this jargon, we’ve explained some of the most-used terms relating to Wills. These are just a start – if you’ve an appetite to go further into the legal jargon of Bonds of Caution (pronounced ‘kayshun’), eiks (pronounced ‘eeks’) or proving the tenor, let us know and we’ll continue the series.
When lawyers and Wills talk about someone’s ‘estate’, it means everything they owned at the time of death. This could mean:
- money in bank accounts or paid out from life assurance
- shares and investments
- their home
- personal possessions – anything from their jewellery or vinyl record collection to their car
- money owed to them
By making a Will, people can give clarity over who they wish to inherit what so far as is possible in line with the law.
This is someone legally responsible for dealing with the estate after death. Executors can be appointed in the Will itself or be appointed by the courts if there is no Will.
Their duties include collating information about the estate, applying for Confirmation (see below), dealing with debts or expenses, reporting any tax due, carrying out the wishes written down in the Will (if there is one), and distributing the estate to the beneficiaries (see below).
If you’re not sure who to appoint as your own executor(s), a solicitor can give helpful practical advice. It must be someone who is over 16 and able to act.
You’ll often see the terms ‘Wills and Executries’ used together (including on our website). The Wills element is probably self-explanatory; an Executry is the process of dealing with someone’s possessions after they die – in other words, the work carried out by an executor, usually with help from a solicitor.
The beneficiaries of a Will are the people or organisations who will inherit something when the person dies:
Legatees are beneficiaries who are left a specific item or sum of money.
Residuary beneficiaries share the residue of the estate, ie what’s left after debts, expenses and legacies have been paid. They may receive equal or different shares depending on the terms of the Will; if someone dies without a Will, the law will determine who gets what shares of the estate.
It’s also worth noting that, in Scotland, some family members may have legal rights to inherit even if they’re not named as beneficiaries in the Will. A solicitor can explain this.
When dealing with an estate, executors may need to apply for Confirmation (known as ‘Probate’ south of the border). This document granted by the court gives the executor(s) authority to access and distribute any money or property belonging to the deceased. Banks, insurers and others may well ask for Confirmation before releasing funds.
To apply for Confirmation, executors must provide an inventory of all the deceased’s belongings at the time of death, such as cash, property and investments.
A solicitor can help executors through the process of obtaining Confirmation, which can take a couple of months depending on individual circumstances. If Inheritance Tax is payable by an estate, the process of obtaining Confirmation has additional steps and will take longer.
We’re getting into more technical territory here, but for a purpose: to show that behind the archaic language of Wills there are some very twenty-first century solutions for families. This is just one reason why it’s wise to seek advice from a solicitor.
A liferent gives a beneficiary (the liferenter) the right to benefit from the use of a property or the income from cash or investments without being the outright owner of those assets. Ownership of the property or the investment capital is reserved for another beneficiary in the future (the fiar), be it on the liferenter’s death or on the earlier termination of the liferent. For example, someone making a Will (let’s call her Kirsty) may want their current partner (Callum) to occupy a property after her death. However, when Callum dies, she wants her son from her first marriage to inherit it, rather than Callum leaving it to anyone he chooses under the terms of his Will.
A liferent could be the answer Kirsty is looking for – as long as her Will is drawn up properly. A solicitor can help.
