Page 2 - Why Make A Will

WHY MAKE A WILL (SCOTLAND)

At present it is thought around two thirds of the adult Scottish population do not have a Will. Perhaps the reason
is that people do not want to think about dying. Many people are also under the misconception that their estate
will be inherited by their spouse and close family anyway so there is no need to go to the expense of having one
drawn up.

This article is going to briefly set out five reasons why it is important to have a professional Will drawn up.

1. Your Wishes

Quite simple if you draw up a Will then your estate will be distributed according to your wishes. If you die without
a Will, then your estate will be distributed according to The Laws of Intestacy for Scotland. There is no come and
go on this and even if it ends in an unjust situation the rules must be followed to the letter. There are many
misconceptions about Intestacy Law.

First of all the surviving husband and wife do not automatically inherit everything. Yes they do get first bite of the
cherry but if the estate reaches a certain limit then other relatives will be entitled to some money. For example
the surviving spouse is only entitled to the house that he/she resided in up to a certain value fixed from time to
time by the Scottish Government. Due to the increase in property prices there will be a number of estates where
the spouse will not even be entitled to inherit the whole home. In addition the surviving spouse is only entitled to
one house. If you leave a holiday house the surviving spouse will automatically be barred from inheriting it.

Commonly unjust situations start arising if the deceased left a husband or wife but no children when siblings and
parents are entitled to a share, sometimes a large share, of the estate.

Another misconception is the rights of co-habitants. If you die leaving a co-habitee they are not automatically
entitled to a share of the estate. Until fairly recently co-habitees had no rights whatsoever. Now new legislation
is in operation where they can apply to the courts to obtain a right to the estate. This application has to be made
within 6 months of the date of death. Please note surviving spouse and all other relatives with intestacy rights
have an automatic right to a share of the estate. They do not have to go through the traumatic experience of
going through a court application. Furthermore the entitlement to the estate is not guaranteed. The court has

discretionary powers and it will depend on the circumstances of the case. This means that the co-habitee will
have to prove that the relationship was a strong one and the deceased would have wanted them to have a share
of the estate.

The simple truth is the rules used to wind up an estate where there is no will do not work particularly well in many
situations nowadays. The rules by and large recognise marital and blood relationships, not recognising informal
relationships which are fairly common nowadays.

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