A number of actors over the years are attributed with saying “dying is easy, comedy is hard”. You might find members of the legal profession adopting a similar mantra, but more along the lines of “dying is easy, succession law is hard”.
Of course, it is made even harder by the volume of people who leave no formal instructions as to how their wealth and property should be distributed after their demise. Their view might well be, as another acting phrase contends, “it’ll be alright on the night”, but that doesn’t quite cut it in the complex legal world of succession planning.
It really is an age-old problem – how do you get people to discuss death, particularly their own? It could be fear or complacency and in many cases a combination of both. On the basis that two-thirds of adults don’t actually even have a Will it might seem an insurmountable problem. And that very problem is exacerbated when you take into account the make-up of so many modern families, whose spider’s web structures simply complicate matters.
Throw in the added complexity of co-habiting couples to the warren of legal issues that can arise for fractured families and you can see why it presents so many issues. It would be interesting to know how many co-habiting couples even consider the implications of a partner’s death and simply assume a property would automatically come their way. It doesn’t.
The same can be asked of step-children for whom there also is no automatic entitlement. Families often involve complex relationships as well as structures and step-children are sometimes closer to the deceased than biological children. There are no set rules for measuring personal relationships and closeness. Adopted children enjoy more protection and rights than step-children as they, along with a spouse and biological children have a statutory claim on an estate.
Complex problems don’t often have easy solutions, but life – or in this case death – can be so much easier if two key things happen. Firstly, I spend a lot of time advising clients to communicate and to spell out their wishes to those they wish to benefit from their estate. Secondly and most importantly they must also do so, in a formal sense, in a Will. Dying intestate (ie no Will) potentially leads to endless complications, heartache and expense for partners and/or family left behind and worse still might mean your wishes are not followed through.
For co-habiting couples there are key steps to take, quite apart from the overriding need to make a Will. There are set rules around entitlement, but these don’t include any provision for those in a co-habiting relationship. It therefore makes sense for your partner to be appointed as an executor to your estate which means they have a legal obligation to ensure your wishes are carried out. If you have previously also appointed them as Power of Attorney the financial and welfare journey through any illness can be made considerably easier. This ensures you have the person you want and trust controlling and actively looking after your affairs.
However, all is not completely lost for a co-habiting partner as they can make a claim against an estate, but they must do so within six months from the date of death. Quite apart from any legal issues involved that process can be one that is emotionally fraught at what will undoubtedly be an already difficult period.
Academics at the University of Glasgow are currently trying to develop an online tool in conjunction with the Scottish Government to enable people to make more informed decisions about succession. Clearly the prospect of an onslaught of legal issues for Scottish citizens is a concern for those in the corridors of power and it has been acknowledged that greater awareness and public education is required to tackle the crisis. This tool is being designed to prompt people into action and anything that helps address a worrying level of knowledge and inactivity is very welcome.
Ultimately, of course, the answer as I’ve already mentioned can be simple. Seek professional advice and make a Will.
Andrew Paterson is a Partner within our Asset Protection Group and specialises in estate planning and tax. If this article has raised any questions or you would like to discuss your affairs then please complete our contact form or call us on 0131 225 1200.
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