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Category: Private Client

Published: 29 March 2020

Making a will - all your questions answered

Legal Rights


What is a “Will”?

A Will is a legally binding document that everyone should have. This a document that expresses your wishes of what should happen to your property when you die. No one likes to think of when they will die, but the reality is if you do not plan for after you die you will be leaving your loved one to deal with issues they are not ready to deal with after losing you.

What is the reality of not having a Will?

  • Your family will be a delayed in settling your estate
  • Your family will be uncertain as to whether they benefit, and some of them may not if you have not left instructions to include certain member in benefiting from your estate
  • Your family will have to go to court to have an executor appointed; family members may disagree on who should carry out this function, which can add to distress
  • Your estate will not usually be divided as you had hoped it would but will be in accordance to the arbitrary rules of the Succession (Scotland) Act, or if you are domiciled in England, the equivalent legislation
  • There will be a cost attached to dealing with your estate for legal fees and court fees, often running to several hundred pounds
  • Partners and spouses may not inherit what you intended to be theirs as there was no provisions made for when you die; this is usually an issue in relation to houses

When should you make a Will or review your Will?

  • When you undertake your first or a new job and when particularly there are pension arrangements
  • When you marry or have a long term partner you need to make provisions for
  • When you separate or divorce your spouse
  • When you buy your home or any other property
  • When you have children
  • If you inherit money from another estate
  • When you retire and there is a change in your circumstances
As you get older you do not need to update your Will annually although you should review is often to make sure your wishes are still being met.

What can you use your Will for?

  • To leave your estate exactly where you want it to go, though this may be subject to Legal Rights*
  • You can appoint suitable executors you choose to have the duty to deal with your estate
  • You can make provisions for any of your estate that you wish to go to go young children; this will allow you to protect their interest until and age you believe they will benefit the most from or they will otherwise inherit at the age of 16, which may be too young in many cases
  • Plan to mitigate the effect of Inheritance Tax on your estate
  • Knowing that your affairs are in order, which makes you feel better
  • Take account of certain legal rules which give some members of your family special rights, as a lot of people are unaware of Legal Rights* and their implications

*Legal Rights
Scots Law makes certain provisions for a spouse, or civil partner, and children to make claims for Legal Rights. These are rights that exist even where there is a Will. Legal Rights are claimed from relatively few estates, but they can cause difficulties. When we advise you on your Will, we can identify exactly what claims might be made, and how they are best dealt with.

What is a “Power of Attorney” and how can it help you?

A Power of Attorney is a legal document which allows you to put someone or more than one person you trust and can rely on to make decisions or act on your behalf if you are no longer able to.

When you are appointing your decision making powers to another person you are the known as the “Grantor” and they become the “Attorney”. The Attorney is legally required to act in the best interests of the person who has signed the document.

Types of Powers of Attorney

Ordinary Power of Attorney: this can be used for convenience or because you want someone else to deal with matters on your behalf. This could be used in matters while you are abroad, in the hospital or want someone else to act on your behalf for general daily matters.

Lasting Power of Attorney or Continuing Power of Attorney: this Power of Attorney is perfect for making sure you are covered in the future for any reason you may need someone to step in and make decisions on your behalf. This will only come into effect if you lose mental capacity, or in the event you feel you no longer wish to make decision for yourself.  Great problems arise when there is no Power of Attorney in place, financial matters such as pensions, bills, investments, tax, and bank accounts would be "frozen". This can cause great stress for a person and their families if they are unable to deal with bills or funds of a person.

We all hope that we do not require a Power of Attorney until our older years but the reality is there is advantage in having one in place from a relatively young age. The physical incapacity arising from accident or injury can lead to the same difficulties and a Power of Attorney is able to aid those who are physically unable to act.

Welfare Power of Attorney: this type cannot take effect unless you become mentally incapable. It allows the Welfare Attorney to decide and arrange for all aspects of personal welfare. The Attorney will take into consideration what your wishes would be and can make decisions on many aspects of your life such as where you will live, what personal care you will receive and if necessary what you eat or wear. The Welfare Attorney may consent to medical treatment on a person’s behalf.

The benefits of having a Power of Attorney

One of the best aspects about a Power of Attorney is that it takes nothing away from you or your own rights; you can still deal with your own money and personal finances until you feel you no longer can or want to. A Power of Attorney is an aid to you and it is you that controls who and when another person is given the right to act on your behalf.  

Your Attorney’s actions are binding on you and must give clear instructions on how you want the Attorney to act and what you require from them as an Attorney.

The Office of the Public Guardian (OPG)

The role of the Public Guardian is to protect people who lack capacity from abuse. The OPG makes sure that attorneys are acting in the best interest of a person.

To find out more about making a will or a power of attorney, contact:

Julia Donnelly
Head of Private Client
Tel. 0141 429 8166
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