When it comes to the law, Scotland has a different way of working to the rest of the UK. Because of this, there is a perception that, if you have property or assets in both Scotland and other parts of the UK you will need two wills to cover it. This is not necessarily the case, however – it depends where your ‘main home’ is. If it is in Scotland, then Scottish law will apply. If, on the other hand, it is in England or Wales, then it is to English law that you will need to turn when writing a will.
But since there are two different laws and two different types of will, what exactly are the differences?
The first is noticed when it comes to marriage. Or rather, re-marriage. In England and Wales, when you re-marry, your original will becomes invalid. In Scotland this is not the case, and you will need to write a new will in order for the correct people to inherit your estate when you die.
A Scottish will requires different validation too. In an English or Welsh will, just one signature is required. A Scottish will must be signed at the bottom of each page.
Witnesses in Scotland don’t just sign either – they have to provide contact details, and that includes their occupation. Witnesses in Scotland do not, however, need to be present when the testator validates their will. The testator can, if necessary, make a handwritten statement if they have to which allows them to sign their will without witnesses present. This can be handy if a witness is also a beneficiary, for example.
The term ‘children’ must also be considered more carefully in a Scottish will. It refers only to biological children and adopted children, but does not include stepchildren. If stepchildren need to be included within a Scottish will, they need to be named specifically.
A spouse in a Scottish will has what are called ‘prior rights’. This means that they cannot legally be excluded from the will, and they will inherit property up to a value of £65,000 and cash up to £21,000 (although this will be £35,000 if there are no children to consider). Once this has been allocated, the spouse and children are entitled to half what is left, and only after that can anything remaining be allocated to beneficiaries.
Regarding executors, the surviving spouse automatically gets the job. However, they can say that they don’t want to do it, and someone else can be appointed instead.
Something that executors often ask is how do they pay the inheritance tax that is due on a deceased person’s estate when it is due before the estate is sold?
The first step is to hire professional valuers to come in and work out how much the estate is actually worth in terms of property, assets, savings, and anything else that is left over. Using an inheritance tax return (which needs to be submitted within six months of the death), the executor will need to inform HMRC of that valuation.
If the estate is worth less than £325,000 then no inheritance tax will be due since the estate falls into the nil rate band. Anything over £325,000 is taxed at 40 percent. So if, for example an estate was worth £800,000, inheritance tax would be due on £675,000, and, at 50 percent, that leaves a bill of £270,000.
That’s a lot of money to pay straight away.
But there are ways to deal with this. Firstly, HMRC allows the tax bills to be paid over 10 annual instalments, meaning that the amount that needs to be paid up front is much smaller than the entire bill. It could still be many thousands of pounds, though. In this case, banks and building societies are often happy to release funds from the estate in advance if they are going to pay inheritance tax. If this is the case, it may be better to pay the entire bill in full at the beginning, and be done with it.
Alternatively, if for any reason the bank won’t release any funds, there is such a thing as an executor’s loan, which can be borrowed against the property and paid back once it sells. It is best to speak to a bank about this.
Some people are pleased to receive an inheritance (despite the fact that it means someone they loved, or who at least loved them, died), and some would prefer not to for various reasons. But no matter what, some inheritances which, from the outside, might not look like much, or might not be overly welcome, could actually be worth a lot more than even the testator realised.
This was the case recently in France when a man inherited a house from a deceased relative and soon found that he had a lot more than he bargained for in terms of what he had been given. Because, hidden in strange places throughout the entire house were gold bars and coins. Not just a few, not just a handful, but around 5,000 coins, two 12kg gold bars, and 37 1kg ingots. They weight over 100kg in total, and they are all worth millions – around £3 million in all.
The treasure trove was apparently extremely well hidden, and it is unclear whether the beneficiary of the house was meant to find it at all. But find it he did when he began to move the old furniture out. The first thing he found was a tin of coins which had been screwed in place under a sofa. Once he discovered this and more, he called a solicitor as he wasn’t sure what he should do with the stash.
After further investigation, it was discovered that there were certificates of authenticity also hidden within the house, and the gold had been bought in the 1950s and 1960s. It has now all been sold.
But what about inheritance tax? The haul could well be liable for a 45 percent inheritance tax, as well as three years’ worth of back taxes if the original owner failed to declare the gold in the first place. And considering how well he had hidden the treasure, it’s unlikely that he did.
If you thought the western world was lax in writing wills, you might be surprised at the rate of wills written in China. Although the majority of people in China do have an idea and a plan as to what they want to happen with their possessions after they died, this is often spoken rather than written down. And this can cause some major problems after they die.
The problem is that acknowledging death in writing – or even by speaking about it too much – is considered unlucky in China, and therefore writing a will is, for those who believe in superstitions, an unlucky thing to do. Some even believe that it will bring death closer. As few as twenty years ago, many people in China didn’t even know what a will was, and those who did have one were seen as having been influenced by the west.
Traditionally, any property and possessions passed to the son or sons in a family, which meant that a will wasn’t required at all. This plus the fact that there are strict rules regarding wills and how they need to be written (so strict that around 60 percent of wills were found to be invalid in 2015) put people off writing one at all. Now, however, the patriarchal system of inheritance is less popular in general, which is another reason that wills are growing in number in China.
Today, more Chinese are committing their wishes to paper, and fewer of them believe that they are cursing themselves by doing so. However, there is still a stigma attached to having written a will, even though, after the testator’s death, it can make life a lot easier for those left behind. In fact, the exact figures for the number of Chinese who have a will is all but impossible to find out since many who have written one don’t tell anyone other than their lawyer in case their family try to persuade them to destroy the document.
One person has helped drive the will writing revolution in China – he is Chen Kai, a lawyer in Beijing. He is the founder of the China Will Registration Centre which is a non-profit organisation that helps elderly people write wills that will be valid after they die. Chen estimates that he and his organisation have enabled 40,000 people to write wills – the documents are kept in the archives of the China Will Registration Centre.
Once upon a time (before 1939, in fact), it was perfectly allowable to those in England to write wills that were deliberately ‘revengeful’. A revengeful will is one in which the testator chooses to leave their spouse or children with nothing while the money instead goes to friends or charity.
In July of 1939, a law was passed that meant it was only possible to disinherit close family members if there was a good reason to do so – and the probate judge would need to agree that it was a good reason if (usually when) these revengeful wills were contested. It would also need to be proved that those who would be unable to make their own living (disabled people, for example) were provided for.
Whilst the English are not meant to make revengeful wills anymore, that doesn’t stop people from other countries having a good go at it. For example, property mogul Leona Helmsley chose to leave a $12 million trust fund to her dog (called Trouble, rather aptly) instead of leaving it to her grandchildren.
The English have, however, found ways around this 1939 law, and with careful wording some have managed to create wills that are exactly what they want. For example, an unnamed Londoner did leave his fortune to his children, but stated that they would only have it on condition that they never became MPs, bought shares, or changed religion!
If an heir hunter phoned you, knocked on your door, even contacted you through the post or via email, what would you think? Would you be excited or wary? Would you even believe what they had to say? After all, someone coming to you to tell you that a family member you barely knew, if you knew them at all, had died and you were entitled to a share of the estate is not something that happens every day.
However, with more and more people failing to make a will, and as families move further apart, the chances of exactly this scenario happening are increasing.
Although the majority of heir hunters are honest and have done a huge amount of background work before even coming into contact with you there are, just like in any industry, problems too. Heir hunters need to be paid just like anyone else, and many of them receive a percentage of the estate they are offering. So, the bigger the estate, the more money they get. This is not an inherently bad thing, but remember: all heir hunters have the same information, and if one has got in touch, others will too. It’s wise to find out what each one’s terms and percentages are before signing up with anyone.
Due to this, it can be a bit of a race for the heir hunters to find the relatives of those who have died intestate. And they can utilise fairly pressurised sales techniques to persuade you to sign with them rather than another company. This is not fair, and it’s not right, and you, the beneficiary, are the one in the position of power – you don’t have to sign with the person who is telling you to, especially if their percentage take is too high.
The good news is, if the deceased person died less than 30 years previously, there is no huge rush – the estate won’t be declared ownerless just yet, and the money won’t go to the Treasury. So you’ve got time to do some important research and have some breathing space.
Some heir hunting companies – IWC included – actually offer fixed price fees. This means that no matter what the inheritance actually is, you will know in advance exactly what you will be paying to receive it.
So when the heir hunters come calling, don’t rush anything. Think hard. Contact IWC. We’ll find your inheritance, and we won’t charge the earth for it either.
Although we all know that we should write a will, over half of us still haven’t. And that could cause some huge problems for our loved ones when we die. People finally get around to making their wills for various different reasons – here are some of the main ones. Perhaps you’ll find your reason in this list, in which case, please don’t hesitate to get in touch with us to make your will. In fact, you should do that even if your reason isn’t below…
1. The Crown
Even if you have no living relatives and no one you want to leave your property and possessions to, you should still write a will. It may not sound like something you need to worry about, but if you have no will then your estate will go to the Crown instead. That’s the government, in other words. If you don’t want this to happen, you could write a will that specifies a charity to take your possessions.
2. Your Ex
If you are simply separated rather than divorced and you don’t have a will, your ex-spouse could be entitled to all of your assets. This is true even if the split was many years ago. Don’t want that? Write a will.
3. Family Arguments
It shouldn’t happen, but it does. A lot. If a will is not made and someone dies, family members tend to get upset about what they haven’t been left. It can lead to massive disputes and family break downs. You don’t want the last memory your loved ones have of you to be that you caused huge problems for them.
4. The Partner
Without a will, your partner or spouse is only automatically entitled to things that you own jointly. Everything else will be split – that includes the house they live in.
5. The Children
If you have children with someone you’re not married to, they will not be entitled to anything when you die. That’s just how it works. Unless, of course, you write a will.
6. The Grandchildren
If you are married to your children’s mother or father, they will automatically be entitled to some part of your estate if you die without a will, which might be fine for you, but for some people it isn’t. Some people would rather than grandchildren received their inheritance instead – so write it in a will if that’s what you want.
7. Inheritance Tax
Dying intestate can mean that your family pay more inheritance tax than they need to.
8. Dying Together
If you and your spouse die at the same time (in a car accident, for example) then the person who is the oldest is said to have died first. Their possessions will pass to the spouse but, because they are also dead, the possessions will then pass to the spouse’s family. If you are the oldest in your relationship, in this situation your family would receive nothing.
This makes for some interesting reading. If you do wish to get in touch, please do so.
Writing a will is not everyone’s favourite activity, even though everyone seems to agree that it is important. One of the problems can be that people aren’t sure what to write in the will itself, or what to leave to whom. And if they have very few assets and possessions, it can feel like an even harder choice.
But simply by speaking to others about it, ideas can be formed and, in a group setting, more wills are written. Even if the conversation is about leaving assets or a certain amount of money to charity, for example – if one person says they are interested in doing so, others tend to follow suit. Or at least start thinking about it. Which is good news. In fact, research recently carried out at Bristol University found that one person stating that they were going to be leaving something to a charity in their will prompted a 40 percent increase in others around them choosing to do the same.
So should will writing become a class in school, or an extra credit module at university? Should all employers get their employees in a room and, as well as pension discussions, have everyone start talking about their wills? Would that work? Let us know what you think.
No one likes thinking about making their own will. It’s a daunting prospect. It’s frightening to think of our own mortality, and for many – apart from the perceived complicated nature of creating a last will and testament – it’s this thought that means that they put it off. And sometimes it’s put off until it’s too late.
Which is why for some people, the idea of a DIY will appeals. Completing an online form or filling in the details in a pack that can be found in the Post Office and various other places seems like an easy, practical, almost comforting solution to this big worry that many people have. If it can be dealt with that easily, people might think, then perhaps it not that big of a deal.
And although DIY will writing kits can be a great solution for some people, for others it’s not a good idea to even think about using one. If your estate is very simple, then a DIY will could indeed be a possibility, but if there is even a hint that the estate might be a little more complicated, then speaking to an expert and asking for help in drawing up a fully comprehensive will would be a better option. The old adage of you get what you pay for can certainly hold true when it comes to wills, and you don’t want your estate to be eaten up in legal bills because you chose to save money by DIY-ing your will in the first place.
The cost of a properly made will can be off putting – compare £10 for a DIY pack to £300 for a solicitor’s will and you can see why – but there is quality in that more expensive price. This can save time and money later on. And it can prevent squabbles between family members, which is the last thing anyone wants after a loved one’s death.
If there are any errors in a will, it can mean that the entire thing is invalidated. The number of mistakes found in DIY wills is, of course, much more than those found in wills that are checked over by a solicitor, or professional will writer. These mistakes include problems with witnesses (or forgetting witnesses altogether), neglecting to name a guardian, failing to sign the will, or forgetting to put money into a trust account that is mentioned.
Without a solicitor or expert will writer’s involvement, the will could even be locked away and not even found once the deceased has passed away. It might also never have been updated – an expert’s advice may cost more, but it tells you more as well.
A protective property trust, property protection trust, or life interest trust is a type of will that is designed specifically to stop your home from being sold to pay for any long term care home fees that you may need to pay. If the property is owned by two people, then after one of the couple dies, their share of the property passes into the trust. It means that the survivor is then able to benefit from the entire property – and upon their death the trust passes to other people, most often the children.
A protective property trust is ideal for those who are worried about the cost of long term care when they are older meaning that they have to sell their home, even though they would prefer for it to go to their children or other specified people.
In order for this to work, the family home needs to be held in joint names, as tenants in common. Then, after the death of the first owner, the title deeds will need to be transferred into the joint names of the surviving partner, and the trustees (who can also be your executors). If required, the surviving spouse can also be a trustee.
No matter who the trustees are, they cannot order the remaining spouse to leave the property – it is theirs for life. If that person needs to move into residential care later on, the share of the property in trust is not seen as an asset, and therefore it can’t be taken into consideration when looking at care home fees. However, the share that is owned by the spouse living in the house is seen as an asset. Houses cannot be split in half to sell, so it is unlikely that it will be used to pay for a care home.
If the surviving spouse decides to move home at any time, this is perfectly possible, and arrangements can be made for a trust to be set up on the new home instead.