Wills and Executry Administration
Making a Will is important to ensure that your wishes are carried out. If you do not leave a Will your estate will be distributed according to the rules of intestacy and although your spouse or civil partner will have certain rights they will not automatically receive your entire estate. In addition if there is no Will a relative would require to petition the court to have an executor appointed which incurs more fees and causes delay in winding up the estate.
There are many legal and financial issues to be considered when thinking about succession to your assets and minimising tax liability. We can guide you. We have for generations supported people at the difficult time of bereavement. When you are trying to cope with the death of a relative it can be overwhelming dealing with the administration of the deceased person’s estate. We can help from funeral arrangements to final distribution of assets.
Further we have vast experience in the creation and administration of trusts and charities. We also have considerable experience in obtaining Confirmation in cases where someone has died domiciled abroad but leaving assets in Scotland which require to be administered in accordance with Scottish Law and Procedure.
So what should go into your Will? Ideally your Will should contain provisions for all your property – not just your house and money in bank accounts but also savings and investments. You may also wish to set aside items of significant sentimental value for particular people.
Another key function of making a Will is to appoint an Executor for your estate. This is an important role as this is the person tasked with carrying out the wishes contained in a Will. They will also be responsible for the closing of bank accounts, funeral expenses and dealing with outstanding tax matters.
While a homemade Will can be held as valid, if it is not drafted properly it may be open to challenge in the Court. To avoid this, our team of solicitors in the Private Client Department will work with you to create a bespoke Will which is legally watertight and truly reflects your wishes.
If there is no Will when someone dies then what follows can be a difficult and drawn out process. That person’s estate will be divided up per the rules of intestacy which derive from the Succession (Scotland) Act 1964.
This Act makes provision for the spouse or civil partner of the deceased as well as any children however, in most cases it will not be an even split. The process of applying to the Court for an executor to be appointed and for confirmation of the estate can take longer and is more costly than if a Will is in place. This can cause unnecessary strain for families at a difficult time and as such we recommend that everyone write a Will no matter how much property you own. Once drafted, we can place your Will in our secure store for safe keeping at no extra charge.
If you already have a Will but it was created a number of years ago it is advisable to review it to make sure it displays an up to date reflection of your assets and wishes. In general we recommend that a Will should be reviewed every five years or on a change of circumstance such as marriage, divorce or the birth of a child.
While many people think trusts are only for the very rich, this could not be further from the truth. Trusts have many uses with different types suitable for different situations. This can range from the most common use of trusts which is financial planning for your family to much more specific situations like the protection of money received from a personal injury case. At Mitchells Roberton we have a number of solicitors who specialise in the setting up and administration of trusts.
So what exactly is a trust?
Trusts are a vehicle for holding assets for the benefit of someone. These assets could be money but may also include properties and investments. The key aspect of a trust is the appointment of trustees who become legally responsible for the holding and distribution of assets in accordance with the deed drafted by whoever is originally placing the assets in trust. The persons for whom the assets are held are called beneficiaries. Beneficiaries can be a specific person or they can be a group or a class of people.
Family trusts tend to be in one of two forms, these are:
- Discretionary Trusts – This is when the trustees have discretion as to how the assets in the trust are distributed to beneficiaries (subject to provisions in the deed of trust).
- Liferent Trusts – This type of trust allows a nominated person (often a spouse or civil partner) to use an asset (i.e. live in a house) or benefit from the income of an asset without owning the asset outright. The asset will then ultimately pass to a different person or group of persons – often the children of whoever wrote the trust.
Other forms of trust include:
- Charitable Trusts – These are an effective way of providing valuable financial assistance to particular people or organisations in need. This can include provisions for grants to be awarded by trustees to those who meet criteria set out in a deed or on a more discretionary basis.
- Personal Injury Trusts – If you have been successful in a personal injury claim, you will often receive the compensation in a large lump sum. This can cause problems if you or close family members require to claim for means tested benefits. This type of trust ring fences the compensation to ensure that it can be used for its required purpose.
- Disabled Beneficiary Trusts – these can be used to protect the assets of those with a disability or lack capacity.
What are the benefits of setting up a trust?
- Reduce Inheritance Tax – By placing assets in trust you reduce the value of your estate making it less likely to be stung by a large IHT cost.
- Protect assets from care home fees – This cannot be the sole reason for creating a trust but if done properly a trust can stop your home being sold off to pay for onerous care home fees.
- Provide for family in the future – You may want to transfer money or assets to a child or relative but on the provision that it is used sensibly and not frittered away. Alternatively you may just want it to be held in trust until they reach a certain age at which point it is fully transferred to them.
- Protection against business failure – Assets placed in trust can be exempt from creditors if a business venture fails.
If you think a trust could benefit you or your family, please contact one of our solicitors who will be happy to arrange a meeting to discuss what options are available and best suited to your needs.
The period of time after a family member dies is obviously a difficult one for those affected. As well as the grief caused by the bereavement, there can also be stress involved in the settlement of the deceased’s affairs. There is a considerable amount of administrative work to be done in the winding up of an estate which most people simply do not have the time to do. At Mitchells Roberton we have a wealth of experience in dealing with estates of all types and sizes. Our Private Client team takes pride in minimising the burden on the executor and handling the administration with the utmost care and efficiency.
Responsibilities of the Executor may include:
- Valuing the total estate to be distributed;
- Ingathering and protecting the assets (including such assets that are not in the United Kingdon);
- Settling outstanding Tax issues of the deceased;
- Paying off debts and liabilities;
- Contacting and transferring assets to beneficiaries;
- Dealing with any claims on the estate;
- Preparing deeds of variation;
- Setting up and administering trusts;
- Closing the estate;
If the deceased did not leave a Will then an application must be made to the Court to appoint an executor before the estate can start to be ingathered. While we strongly recommend having a Will in place, we have completed this process countless times for our clients over the years.
The question of how long it will take to wind up an estate depends on a number of factors. If the estate is relatively small and a Will is in place then it will usually be possible to settle the estate within six months. With larger estates that may be subject to inheritance tax the process may take ten months or more. Throughout this period we will make regular contact with the executor to keep them informed of how matters are progressing.
If you need assistance dealing with the estate of a loved one or are looking to get a Will drafted, our Private Client department are here to help.