MiLC Blog

Do I need a Will?

Can I afford to prepare a Will?  Do I need a Will?


You may have already considered these questions and concluded that a Will is an expense you cannot afford, and/or, it is something you do not have to worry about as you wish to leave your entire estate to your spouse or children – that is what will happen anyway…right?

Well, it is true that on your death there will be a degree of administration required whether you have a Will or not.  However, when we die without leaving a Will there are extra steps required to complete the administration process, which we will consider further below. Unfortunately these additional steps will result in increased administration costs, delay to the administration process, along with added uncertainty and stress for your family during an already difficult time.

As you may know, Scots Law sets out how your assets are distributed on your death when you do not have a Will. Many believe that their entire estate will pass to their spouse on death, but this is often incorrect.  The rules specifically provide that where an estate exceeds a certain level, then a share of the estate (known as “The Free Estate”) will pass to other family members who are ranked in a strict order.  Your children or their descendants, your parents and your siblings all rank before your spouse.  For example, if you have no children and your estate exceeds the thresholds which pass to a surviving spouse, on your death your share of a holiday home owned jointly with your spouse (no survivorship clause) could pass to your siblings, even if you have no relationship with your siblings.

With the change in family dynamics over recent years, there may also be a division you may not have anticipated.  Some common issues are (1) if there are children from different relationships, Scots Law does not give the same right to half-brothers and half-sisters as they do to siblings who share both parents (2) if your estate passes to your spouse on death and you have children from a previous relationship, on the death of your spouse, your children are entitled to nothing from the estate and (3) if you have no close family, a genealogist will have to be instructed to locate remote family who will receive your estate.  Your funds will be used to meet the cost of a genealogist.

A Will records your wishes in a valid enforceable deed.  In your Will you also nominate an Executor who is the person appointed to ensure your wishes are carried out.  As mentioned earlier, without a Will, an application has to be made to the Sheriff Court to appoint an Executor which is an additional step, and cost, in dealing with the estate.

The main increase in cost when there is no Will is the requirement for a Bond of Caution.  A Bond of Caution is a form of insurance which provides protection for creditors and beneficiaries against the estate being distributed incorrectly.  An application is made and a premium paid to an insurance company.  The premium varies and is based on the value of your assets and who the beneficiaries will be but it ranges from one hundred pound to thousands of pounds.

The extra cost in dealing with an estate without a Will can be higher than the cost of instructing us to prepare your Will now.  A Will gives you comfort in knowing your wishes are written down and matters will be dealt with by your family when you are gone.  You may have something in place already, assurances from family or a DIY Will.  Having your wishes known does provide guidance to your family and loved ones on your death however it is important to know that informal instructions, a DIY Will, even the proforma Will packs you can purchase may be deemed invalid.

There is a legal difference between Scotland and England and many of the DIY pro-forma Will styles conform to English rather than Scots Law.  There is a danger that this type of Will is not valid and if this has not been correctly executed accordingly to Scots Law, it may be necessary to apply to court to have the Will validated.  Again, this will cause delay, extra costs and uncertainty for family and beneficiaries.  The costs of correcting errors in a DIY Will be much higher than the cost of instructing us to prepare your Will now.

Instructing a professional solicitor also ensures you are given advice on Scots Law relevant to your personal circumstances.  We will ask about your family, wealth and your wishes to ensure your Will really does what you want it to do. Paying for a Will is an investment which will bring you comfort in knowing your affairs are in order and your wishes are recorded in a valid format.

Due to Covid-19, restrictions are in place and likely to continue for the foreseeable future.  Our offices in Bonnyrigg, Penicuik and Edinburgh are closed however you can still get a professional Will in place now.  You don’t need to meet with a solicitor face-to-face.  We have all had experience with Zoom, Skype, WhatsApp and Facetime over the last year and you can now instruct a solicitor to prepare your Will via video call.

Stuart & Stuart Solicitors have a longstanding presence in Midlothian and Edinburgh and have a strong Private Client team with many years of experience between them, including Will drafting and executry administration.  Please get in touch on 01968 677 294 or 0131 663 7135 and after a brief discussion we will be able to give you a quote for preparing your Will.  Our working hours are 9am and 5pm Monday to Friday.

Other Articles

Join Our Membership