Do you need a Will? Find out why it's important to have one in place

Published: February 26, 2024

Preparing a Will can seem like a daunting task. In this blog post, we explain what a Will is, the importance of having one in place and how to get started or implement any changes to your existing Will. 

What is a Will?

A Will, most simply put, is a document which sets out how a person wishes their estate to be distributed following their death. It sets out who you want to benefit from your assets, how each person is to benefit and who is to be responsible for making this happen. Depending on your circumstances, a Will can be a reasonably straightforward document setting out different layers of beneficiaries, or a more complex but flexible document to allow more discretion as to how your estate is to be distributed.

Why should I put a Will in place?

Most importantly, putting a Will in place allows you to exercise your freedom of choice. If you do not have a valid Will in place, the law of intestacy applies and removes these choices. This means your estate would be distributed in accordance with a set hierarchy. When preparing your Will, we can take account of your own family circumstances, perhaps balancing the needs of your spouse and your children or building in provision for a vulnerable beneficiary. If you do not wish to benefit family members, we can explore different options. Ultimately, there is no one better suited to choose what to do with your estate than you.

In addition to the loss of choice, there are additional costs associated with not having a Will. When a person dies without a Will, this can lead to additional stages of administering the estate, which in turn can increase the associated costs. There may also be delays if time is needed to investigate the family tree to determine who should benefit, particularly if it becomes necessary to instruct a genealogist. 

Preparing a Will can ensure any tax planning opportunities are identified. As part of the estate planning process, there are a number of strategies we can consider to help mitigate or even remove a potential tax liability, thereby maximising the funds available to pass on to your beneficiaries. 

Having a Will in place provides you and the relatives or other beneficiaries that you leave behind some peace of mind during an already stressful and difficult time. A Will can significantly reduce the possibility of family arguments, with your wishes clearly documented.

In addition to determining how your estate is to be distributed, a Will allows you to set out your funeral instructions and to make provision for who is to look after any young children you may have. It can also provide trusted individuals with the powers required to protect and access your digital assets following your death. It therefore goes beyond simply determining who is to receive your assets.

Common misconceptions

Despite outlining the benefits of putting a Will in place, sometimes clients feel that now is not the right time. Below, we cover some of the common misconceptions we hear and why there is no time like the present to get your Will sorted.

“I have no one to leave my estate to” – without a Will, the law will keep looking backwards and outwards until any living relative is found, failing which the estate will pass to the Crown. If you have no immediate family you wish to benefit, we can help you make alternative provision, perhaps leaving your assets to a friend or a favourite charity.

I’m too young” – anyone aged 12 and over who has legal capacity can make a Will in Scotland. None of us know what is around the corner and it is never too soon to put a Will in place. Although it can be daunting to think about a time when you are no longer here, we are here to help guide you through every stage of the process.

I have nothing to leave” – it is notoriously easy to undervalue your estate. For example, do you have any pension or life insurance benefits to consider? When all assets are set down on paper, you might be surprised to find out your net worth.

My family will do the right thing” – in practice, your family’s view here may be very different from your own. Without agreement from all affected beneficiaries, the estate must pass in accordance with the hierarchy set out in law. 

I’ll make a DIY Will” – homemade Wills, although tempting due to the lower cost at the outset, often do not comply with the rules to make it a valid Will in Scotland and can lead to further complications. This can in turn lead to delays in the administration of your estate, often involving court actions, which can greatly increase the costs of administration. 

Surely my spouse/partner/children will get everything anyway” – often people assume their nearest and dearest will automatically be entitled to their estate. This is not always the case and we would strongly encourage you to review your circumstances with a solicitor. For instance, cohabitants do not have any automatic entitlements on their partner’s estate.

My circumstances are likely to change” – while this is often the case, Wills should be reviewed regularly and can be updated as often as required. We can also put in place very flexible Wills, where changing circumstances can be taken into account.

What’s next and how do I get started?

Putting a Will in place is important to ensure that your wishes are implemented following your death. When you are ready to take the first step, please get in touch with us to discuss your requirements. 

If you already have a Will in place, now is the time to dig it it and review its provisions. If any updates are required, please do let us know and we can discuss how best to implement these changes for you.

If you have any questions, doubts or concerns around making a Will, please get in touch with our Private Client team who will be happy to assist.