Many people incorrectly assume that if they do not document their intentions in writing prior to their death, their assets will automatically pass to who their intended beneficiaries anyway, such as a spouse, civil partner, cohabitant or their children. Because of this perception, they believe preparing a Will is unnecessary and that it is a waste of time and money.
However, getting your affairs in order by preparing a Will is often much less costly than the additional time and expense involved in administering an intestate estate (the estate of someone who has died without leaving a Will) after an individual has passed away.
Therefore, it is worth keeping the following three points in mind when considering whether or not to instruct a solicitor to prepare a Will on your behalf:
1. Appointing executors to deal with your estate
When a Will is prepared by a solicitor, one of the first clauses appoints certain individuals as chosen by the Will maker (known as the testator) to be responsible for ingathering and distributing their assets after their death. These chosen individuals are known as the executors of the estate.
Typically, it is only the executor(s) of the estate who will be able to engage with banks and other institutions holding the deceased’s assets. Without a Will that clearly appoints an executor, the surviving family may face significant obstacles in administering the estate. This often means that rather than an executor appointed in a Will (an executor nominate) easily being able to act/progress matters from the outset, the family will instead have to apply to the Sheriff Court to have someone appointed as an executor dative (a court appointed executor) to then allow them to begin administering the estate. This process incurs additional expenses and delays that could have been avoided if a Will been put in place prior to the individual’s death.
2. Requirement of a Bond of Caution
After the court appoints an executor dative, it may seem straightforward for the executor to manage the deceased’s assets. However, most estates require a Certificate of Confirmation (confirmation) to be obtained from the Sheriff Court before the executor/s have legal authority to deal with the assets like selling property, transferring or selling shares, or closing bank accounts etc. If the deceased had left a Will, the executor could easily apply to the Sheriff Court from the outset to obtain the required confirmation. However, where there is no Will, the Sheriff Court will require a Bond of Caution (pronounced ‘kayshun’) to be obtained by the executor(s) before confirmation will be granted.
A Bond of Caution is an insurance policy which protects against the incorrect distribution of an estate by an executor as there is an increased risk of the wrong individuals receiving the estate assets where there is no Will. Again, the need to apply for a Bond of Caution will increase the time involved in the estate administration process and can be costly to obtain, depending on the value of the estate.
3. Be certain on who will receive your assets
Do not assume your entire estate will pass to the individuals who you wish to receive your assets even if you do not leave a Will. Without a Will, your estate will be distributed according to intestate succession laws.
Whilst your spouse may inherit your entire estate, this depends on the size of your estate. In larger estates, while the spouse or civil partner will definitely receive a certain proportion of the estate, some of your estate may pass directly to children or indeed to other family members in the absence of children.
This is particularly important for those wishing their cohabitant to receive their estate. Unlike spouses and civil partners, cohabitants do not have an automatic right to their partner’s estate if no Will has been made. They would have to apply to the Sheriff Court to obtain any benefit from the estate, which is at the Court’s discretion.
It is therefore imperative to make a Will if you want your intended beneficiaries to receive your assets. Without one your estate might be distributed to unintended family members or individuals.
Do I really need a Will?
To answer the question “Do I really need a Will?” You do need a Will if you want to ensure your loved ones receive what you want them to have from your estate, and if you want them to be in control of your estate. Without a Will you are simply leaving your estate to be distributed as per government legislation, causing delays and additional costs for your family.
The time and expense involved in preparing a Will are significantly less than those incurred in administering an intestate estate. Therefore, we encourage you to ask yourself “Is it really worth not having a Will?”
If you would like to put a Will in place or indeed update your Will to reflect your current intentions, please contact our Private Client team. We are here to help.
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