What if You Don't Have a Will?
What if You Don't Have a Will?10 December 2019 Written by James & George Collie

In Scotland, the law tells us who will inherit your estate when you die without making a Will.  This can give rise to your assets going to someone who you may not wish to benefit.  There are quite a few misconceptions about this, including the wrong assumption that your spouse or civil partner will automatically inherit everything.  This is not always the case, especially with high value estates, where children and even parents, brothers and sisters or similar relatives could inherit a share of the estate.

Even if your estate was below the specified limits and your spouse or civil partner was to inherit your whole estate, then if this is a second marriage, and you have children from the first marriage, then it is possible that they will receive nothing on your death and they would not have any automatic rights of inheritance on the death of your second spouse or civil partner.

What if I'm Co-habiting?

You should be aware that it is now law that if you have been co-habiting with someone, and die without making a Will, that co-habitee could raise an action to claim a share in your estate as well. It is however important to note that if you co-habit with your partner, there is no guarantee that he or she will inherit anything at all, unless you make a Will and name them as a beneficiary.

Why Should I Make a Will?

One main benefit of making a Will is you get to exercise your freedom of choice.  You can choose who you wish to appoint as your executors and trustees to deal with the administration of your estate in accordance with your wishes.  If you do not appoint executors or trustees in your Will, then someone may have to apply to the court to be appointed as your executor after your death.  They will also likely have to obtain an insurance policy called a Bond of Caution which is not required when there is a Will.

If you make a Will you can leave specific bequests of items such as jewellery or ornaments to people, whereas under intestacy these items will not necessarily go to the person you would like to receive them.  You can also leave bequests to Charities, who would never inherit anything if you die without making a Will.  A Will can also include specific funeral directions that you would wish to be carried out upon your death.

It is advisable that those with young children should make a Will in order to provide financial provision and protection for them. If no Will was in place children could be left in the care of any member of the family. A Will can provide for the appointment of Guardians to look after your children should you die. This trust clause will also deal with the financial aspects, including money to be paid over to the Guardians to be used for every day financial support for the children or money to be held in trust for the children to an age which you specify, typically 18 or 21 years old.

Another fundamental benefit of making a Will is to make provision for financial and tax planning purposes. It is advisable for those with a high valued estate, apart from considering inheritance tax planning pre-death, to make a Will to provide for the potential tax liabilities their loved ones may face on their death.

As you will have seen, this is a complex area and it is much better to set up a Will in which you can say who you wish to inherit your estate.  This is particularly important where you have a high value estate, a second marriage, young children, a cohabitant, you own your house or have complex family or financial circumstances.  It is also true that if you die without making a Will, it is more expensive to administer your estate, as additional work has to be carried out.  By making a Will you eliminate the uncertainty surrounding what requires to be done and relieve stress on your loved ones at a time of grieving.

Contact Our Wills, Trusts & Estate Planning Solicitors Based in Aberdeen and Stonehaven Today

Our experienced team of lawyers can provide advice on a wide range of legal matters, including making or challenging a Will. Should you wish to discuss making a Will or perhaps updating an existing Will, please contact our Forbes McLennan by emailing This email address is being protected from spambots. You need JavaScript enabled to view it. or our Vivienne Bruce by emailing This email address is being protected from spambots. You need JavaScript enabled to view it..You can also get in touch by calling us on 01224 581581.

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