A law firm for life

More and more companies are offering Will writing services with the eye-grabbing promise to be cheaper than your local lawyer, to make it all much more straightforward and even do it all online.

What you may not realise is that these companies are not providing you with any advice and when the time comes when the Will takes effect, it will be your loved ones that will have to pick up the pieces. In all likelihood, the company will no longer exist as it will simply have been wound up. Even if the company still exists your loved ones will have no recourse as it will state somewhere in the small print that they are not offering you any legal advice. How can they? How can someone offer you advice without having met you and discussed your family dynamics?

These companies are also often English based and have none or limited knowledge of Scots Law.

Why might an online Will not be right for me?

There are many reasons why a simple Will or a mirror Will may not be the right type of Will for you. Mirror Wills are simply identical Wills that couples tend to make leaving everything to each other whom failing their children. If, however, you leave everything to your partner or spouse in your Will and they then need care in later life, your entire joint estates may be used to pay towards care. We can advise you on how to structure your Will and other affairs to avoid this happening.

There may also be various reasons why you do not want your children to ultimately inherit from your estate. For example, you may be worried that at some point in the future they are likely to divorce or may get into financial difficulties. You may have estranged children who are still entitled to inherit a share of your estate regardless of what you’ve provided for in your Will. People often don’t realise that their children have an automatic entitlement to a proportion of their estate when they die.
In Scotland, you can’t disinherit your spouse, civil partner or children since these family members have a claim known as Legal Rights which entitles them to a share of your net moveable estate. That includes the ‘black sheep’ that you may have fallen out of contact with some years ago or a child you have never spoken to.

An estate cannot be distributed fully until the issue of Legal Rights has been dealt with, and the Executors are under a legal obligation to inform anyone entitled to claim, the amount that they are due.

If you have been married before and have children from your first marriage and wish your children to ultimately inherit your estate, again, a mirror Will may not be for you.

Again, Legal Rights must be considered as children from a previous marriage are also entitled to Legal Rights in your estate when you die, in the same way as any children you might have to a subsequent marriage. This means that not all your estate may necessarily pass to your spouse.

Alternatively, if you are worried about providing for your spouse but want your children from a previous relationship to ultimately inherit your assets, you can provide for this in your Will by way of a Liferent.
Legislation in Scotland has recently changed, and if you have subsequently divorced but not amended your Will, your spouse will not be entitled to your estate however if you are only separated and not yet divorced, you may find that your estranged spouse is entitled to your entire estate.

Spouses and civil partners have certain legal rights to their partner’s estates whereas cohabitants do not. Contrary to what many believe, in Scotland there is no such thing as a common-law marriage, so if you are not married or in a civil partnership and are cohabiting with your partner, you are not automatically entitled to any assets in your partner’s estate regardless of how long you have been living together, if you have children together or even if you own a property together. Without a Will, your partner may have to go through a long and expensive Court process to inherit from your estate.

There are many “peculiarities” in Scots Law that many people don’t realise and that is why it is important that you meet with a local solicitor to discuss your affairs fully and ensure that there are no ugly surprises when you or your partner/spouse passes away.

How can The McKinstry Company help?

If you are concerned about what may happen to your estate, please make an appointment with one of our trusted Private Client advisors. We can advise you on the following:

  • Making a Will for the first time
  • Explain why a mirror Will may not be for you
  • How to include or exclude step-children/step-grandchildren
  • How to protect your children’s inheritance from the local authority or third parties
  • The difference between owning your house with a survivorship clause and not
  • Why you should have a Power of Attorney in place
  • Why a Trust may be beneficial for you

Contact our Specialist Wills and Estate Administration Solicitors in Ayrshire & Dumfries and Galloway

Writing a valid Will gives you full control over what happens to your estate and how it is divided up. We pride ourselves on being a law firm for life and looking after you and your assets are our number one priority. To discuss your specific circumstances with our friendly and approachable team, contact us today on 01292 281711 or complete our online contact form.

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We are open from 1st July by appointment. We will be restricted to executry and matrimonial clients. Social distancing measures will be in place.