Wills FAQs

There are several different types of Wills that you can consider. At NewLaw, we want to first find out about your situation and what you want to achieve through your Will. We can then advise you accordingly.

The main types of Wills we generally discuss are as follows:

• Straightforward Will

  As the name suggests, this is the most uncomplicated Will to draft. It usually leaves most assets to one person and might include some specific gifts to family, friends or charity.

• Discretionary Trust Will

  You may wish to consider a Discretionary Trust Will as part of Inheritance Tax planning, or it could be that you do not want to gift your assets outright to someone, for example they may be vulnerable and would rather add some protection by creating a trust.

  This type of Trust ensures your Trustees look after the money for people that you want to benefit. The Trustees then exercise their discretion when distributing any of the Trust funds and can do this in accordance with any separate directions that you have left.

• Interest in Possession Trust

  This is a useful Trust that can be used to protect assets to ensure they reach your ultimate intended beneficiary, but allows a degree of flexibility so that another person such as your spouse can benefit from the assets during their lifetime.

• Disabled Beneficiary Trust

  If you are leaving assets to someone who is disabled, it is absolutely essential you consider including this Trust within your Will. If you leave assets to a disabled person outright, you may put them at risk of their means tested benefits or other support being stopped, or their inheritance being used up by paying for care.

  Also, depending on the type of disability they suffer, they may not have the ability to manage a large sum of money. By placing their inheritance into a Trust, you are allowing the beneficiary access to the money but it will be managed prudently for their benefit by the Trustees.

In your Will, you appoint people to deal with your estate, who are known as Executors. You are able to choose the people you trust to make decisions, to act honestly and to distribute your money, belongings and property according to your wishes. If you do not prepare a Will, the law decides who will be responsible for doing this, which would usually fall to your closest relatives.

When dealing with a deceased's estate, you may need to obtain 'confirmation' before any money and other property, belonging to the deceased, can be released. It is often a bank, building society or insurance company that will ask for this.
Confirmation' is a legal document from the court giving the executor(s) authority to request the release of money or other property belonging to a deceased person from the holder (such as the bank), and to administer and distribute it according to law. An application is lodged with the sheriff court.

You can choose who you would want to receive your assets and how much they will receive in your Will, but you cannot be obliged to include someone you do not wish to.

The law however sets out certain categories of people who may be able to apply to the Court to make a claim against your estate, if they feel they should not have been excluded or if you did not provide sufficiently for them. This category includes your spouse, ex-spouse, partner, children and anyone who was dependent on you.

You cannot completely avoid this from happening, but it is important to explain why you have decided to prepare the Will in a certain way, as this will be considered by the Court if a claim is brought. It is important you are as open and honest with us whilst drafting your Will and tell us of any unusual family circumstances, so that we can give you the best advice possible.

If you have children under the age of 18, your Will allows you to appoint people to act as guardians, who will look after the welfare of your children until they reach adulthood.

Also, many people do not realise that although children under 18 are not able to inherit money outright, as soon as a person reaches 18 they will be entitled to receive their inheritance. You may feel that this is too young an age to be receiving potentially a large sum of money; therefore in your Will you can specify an older age for them to inherit, when they might deal with it more sensibly, such as 21 or 25.

You can choose who looks after the money until the time that you want your children to inherit their estate. These people are called your Trustees.

Many people think that if you are not married but are living with a partner as if you were a legally married couple, the surviving partner will be treated as if they are a spouse - this is not the case.

If you are in a relationship with your partner and living together, your partner has no legal right to any of your belongings if you die, even if you are engaged. The only way to ensure your partner is allowed to continue to live in your property, or can afford to pay the bills and running costs of the house is by providing for them in a Will.

Yes, if you want to leave specific items, such as family heirlooms that have been passed down the generations, or give jewellery to certain people, you can ensure that this takes place by writing it in your Will.

If you wanted to leave money to charity after your passing, again this can only be guaranteed if you include it in your Will.

Inheritance Tax is a tax on the property, money and possessions of someone who has died. A Will can be an effective way to reduce the amount of tax to be paid, if you have a sizeable estate.

We can advise you on the best way to structure your Will and your estate to try and minimise the amount of tax to be paid, and we will advise you on the full range of exemptions and reliefs that are available to you.

Many people do not realise that marriage revokes a Will, so if you have entered a second marriage, you no longer have a Will in place. This means that all your assets will pass under the Rules of Intestacy.

The Rules of Intestacy state that if a person is married, unless the estate is very large, the spouse will inherit everything. The danger of this situation is if you pass away and your new spouse inherits everything, they could leave all of the assets to whomever they want to. Which may leave any children from your first marriage at risk of not receiving anything.

You can avoid this situation by making a new Will on your second marriage and either making specific gifts to your children or by including a certain type of trust, known as an Interest in Possession Trust within your Will. This will ensure that your children receive something as well as your spouse.

As people are living longer, people are becoming more concerned about whether they will need care in the future and how they are paying for it. You may worry that you will spend all of your money paying for the care of a spouse or partner and have nothing left to pass onto your children.

If you are concerned about this, it is possible to include an Interest in Possession Trust in your Will to provide for your spouse or partner whilst ensuring that those assets pass to your children after your spouse or partner passes away.