I like to think that those in my profession dispense wisdom and wise counsel. I don’t know if Agatha Christie was referring to lawyers when she said: “Good advice is always certain to be ignored, but that’s no reason not to give it.” If she was referencing the legal world, then she was almost certainly talking about our sometimes fruitless passion to ensure people put effective Wills in place.
It’s a source of great frustration to lawyers that so few people in the UK have a Will, with the latest estimates highlighting that around two-thirds of the population have not stipulated what should happen after their death.
Dying intestate (without a Will) can lead to a myriad of inter-connected problems and extra hassle and heartache for those left behind at a time when they least need it. It’s a costly mistake to assume that your spouse or partner will simply inherit everything, especially with today’s often complicated family structures. Why rely on default legal rules that might be out of date and out of step with what you want?
And this is where complications start. If there is no Will, your spouse or civil partner is entitled to Prior Rights, which gives them a share of your spoils, but with limits. Once they are exhausted the spouse or civil partner and children (including adopted but not stepchildren) are entitled to Legal Rights, which is a share of the estate’s moveable assets. If you have a partner, who is neither your spouse nor civil partner, they are not automatically entitled to any part of your estate.
I’m afraid the news remains gloomy for those without Wills because it is not just on a personal level that problems can occur. The business community can feel the pinch as well without professional planning. I’m sure we all know entrepreneurs or business owners who put all their energies and focus into running their enterprises. It is, therefore, puzzling that talented and successful people so often neglect Will writing, that will future proof their business, employees’ security and their family members who are involved as directors or shareholders. There is no apparent stumbling block when it comes to life or key man insurance or rigorous tax planning, so what’s the issue with Wills?
Key moments tend to focus minds and for the business community planning an exit is one of those. At that point succession planning, Inheritance Tax implications and Wills leap to prominence as paper values become real money. Without the structure and guidance of a Will, however, complications loom.
The farming community frequently presents a challenge as written partnership agreements are often not in place, never mind a Will. It is more often easier to resolve corporate issues as companies’ constitutions at least govern the legal steps on the death of a shareholder, albeit this can be a lengthy process.
There seems to be widely held misconception that making a Will is a complicated and expensive process and it’s amazing how often I hear people say that they should have sorted it out years ago once they have eventually arranged it. The absence of a Will can have catastrophic consequences for those left behind and the deceased’s wishes will not necessarily be followed. Unless of course you either engage a solicitor or, as the old joke has it, write the shortest Will possible: ‘Being of sound mind I spent all my money’.
Murray Beith Murray Partner, Andrew Paterson, is an expert in will writing and succession and estate planning. He also heads the firm’s executry group, assisting clients with the legal issues arising following a death. If this article has raised any questions or you have a matter to discuss please get in touch using the enquiry form or call on 0131 225 1200.
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