Spouses and Civil Partners have certain statutory rights known as prior rights where no Will has been made. Surviving children -which includes adopted children but excludes stepchildren- are entitled to legal rights whether a Will is in place or not. It is not the case that married couples automatically receive the whole estate of their deceased spouse or civil partner as their entitlement is subject to an upper limit. Scots Law now provides some help for unmarried couples where their partner dies without making a will, however, they do not have an automatic right and any award is at the discretion of the courts within strict timescales.
Dying without a Will means your estate is distributed in accordance with the law of intestate succession which may not necessarily reflect your wishes and it can lead to unnecessary delays, extra cost and additional stress at an already difficult time. It can mean some estate goes to the deceased’s brothers, sisters, nieces and nephews rather than the spouse/civil partner. Children would also inherit their entitlement when they reach 16 years of age without any restrictions or safeguards. This would be entirely unsatisfactory for many parents.
Making a Will ensures your estate is distributed in accordance with your wishes and gives you peace of mind knowing your loved ones are provided for. Modern life and changing family dynamics mean that Wills are especially important. With the trend of unmarried couples living together (sometimes with children) or where people are in second marriages with children from earlier marriages, it cannot be stressed enough how important it is to have a Will prepared and/or a Cohabitation Agreement. It is also very important where heritable property such as the family home is involved.
The Benefits of making a Will
A well drafted Will ensures:-
- your affairs will be dealt with in accordance with your wishes
- that the longer process and costs involved on intestate succession are avoided not to mention the additional stress to your family
- your estate is left in the most tax-efficient manner in terms of inheritance tax and, perhaps, future care home fees for a surviving spouse or partner
- the interests of young and vulnerable beneficiaries are protected
- that suitable settlement arrangements will be in place for those in a second or third marriage looking to protect the interests of children from earlier marriages.
You may already have a Will which needs redrafting as your circumstances may have changed. There were also some major changes to the law in 2007 and there are changes to the laws of succession currently going through the Scottish Parliament. It follows then that the right Will a few years ago might not be suitable now. Oracle Law can review your current Will based on your current circumstances and advise of any changes that you may wish to consider.