When a Will is made, several decades may pass before it is required. In that time a number of events could take place which cause the original will to be misplaced. Examples being the testator moving home and losing it or the solicitor who prepared it not storing it correctly. Unfortunately accidents do happen however if there is a copy of the signed Will then there is a court process that can allow the copy to be used.
‘Proving the Tenor’
The court process
Did you know that the law in Scotland provides that you cannot entirely disinherit your spouse, civil partner or child even if you do not include them in your Will? This is because we have what are known as legal rights.
What are legal rights?
Under Scots law, certain family members are entitled to legal rights when a person dies testate (with a Will) or intestate (without a Will). A surviving spouse, civil partner and children (including adopted children) can make a claim against your
Following the first lockdown the property market in Scotland has exploded. There is such high demand for properties it’s no wonder the most recent statistics* are showing an average annual increase in value of over 11% for residential properties in Scotland. Currently the average price of a property in Scotland is £182,755, said to be “one of the highest reported for any month since the index started in 2004.”* Whether owners had more time during lockdown to finish DIY projects to get their property sale
Quite often family members can be left disappointed with the terms of a Will. They may feel they have been unfairly left out of the will or that the deceased wishes are not correctly set out in the will perhaps even because of the influence of someone else.
There are certain circumstances in which the courts can be asked to reduce (cancel) a will.
Incapacity
A person signing a will must be capable of understanding that will. If they lack the capacity to do so,
Following the Grenfell disaster in 2017, the Scottish Government has introduced new rules for fire and smoke alarms in homes across Scotland. Originally intended to be introduced in February 2021, these rules are to come into force in February 2022 and will apply to every home in Scotland.
The rules
From February 2022, every home in Scotland must have:
You may be excused for thinking that if a public body was holding money on your behalf that they would hand it over without any hassle. Unfortunately, when it comes to the Scottish Courts and Tribunals Service, it is not as straightforward as many would hope. The court, as a public body, have to follow strict procedures to ensure they can legally release money they hold. One important procedure for the court is that they must check there are no taxes due on the funds
Hearing so many families losing loved ones and the long-term effect Covid-19 has had on their lives is distressing. However it does highlight the importance of having a Power of Attorney in place. Too often we hear of spouses with separate bank accounts where one of them becomes ill and the other isn’t able to deal with their accounts, their bills and other important matters at what is already a traumatic time. So, alongside the worries of their loved one’s health they now have to
Although restrictions have eased there is still a significant impact, which will be felt in the coming weeks and months.
Where someone has been assessed as lacking capacity and has not put in place a power of attorney, an application requires to be made to the Court for a guardian to be appointed with legal authority for decision making in respect of the incapax adult’s health, welfare, finances and/or property. This was brought into effect some 20 years ago by the Adults with Incapacity (Scotland)
You have saved up scrupulously for months, found the property of your dreams, and now you have had your offer accepted. You are finally ready to begin moving home and you have instructed your solicitor to arrange the legalities for you.
However, there are many practical aspects to consider when moving to a new property. For example, which items within the home are to be included as part of the sale? What if any of those items are not in working order? Is the home
A Guardianship Order is a court order, which authorises a person to act and make decisions on behalf of an Adult with incapacity. In Scotland, an Adult is a person who is 16 years old and over. The law relating to guardianship is governed by the Adults with Incapacity (Scotland) Act 2000. It is important to seek legal advice prior to making an application for Guardianship to ensure that the appointment will benefit the Adult and that no other means provided for under the Act
Today sees the start of Dementia Awareness week in Scotland which, prior to the pandemic, would have culminated with Alzheimer Scotland’s annual conference. Sadly, the conference will not be taking place again this year due to current restrictions. However, during this time we can all continue to show support and continue to raise awareness for those living with dementia, their carers and families.
Now, possibly more than ever, it is important that those living with dementia and their families know that getting their legal affairs
Among the excitement of purchasing a property together, the question of how the ‘title’ to the property should be taken is often only given a quick thought.
Very little time is spent on considering what it means to include or not to include a ‘special destination’ in the title and the consequences this may have down the line.
What is ‘joint title ’?
When a person buys a property he/she takes ‘title’ to that property in their sole name. When two people fund a
Young adults who lack capacity – guardianship orders
Any parent of a young adult who lacks capacity and is approaching 16, or has just turned 16, should take advice on whether they should apply for a guardianship order. Until the age of 16 you have been able to make decisions on behalf of your child. On turning 16 that automatic delegation of decision making to you, as their parent, comes to an end.
There may be various matters you have to assist with. For example
Historic position
Historically when a disabled proprietor wanted to make an alteration to the common parts of a tenement to allow them to continue to use and enjoy their home by, for example, introducing a stair lift, access ramp or additional handrails by dint of the Common Law they required the consent and agreement of all other owners in the tenement to permit the change. The introduction of the Tenements (Scotland) Act 2004 failed to provide a simplified mechanism for approving such improvement or alteration
None of us could have imagined that almost a year after we first heard the words “Covid-19” that we would still be under such restrictions, the impact this would have on the NHS and the long term effects of Covid-19.
Hearing so many families losing loved ones and the long-term effect Covid-19 has had on their lives is distressing. However it does highlight the importance of having a Power of Attorney in place. Too often we hear of a husband and wife with separate bank
Life has changed dramatically for us all since March 2020. We had hoped that we would be getting “back to normal” sometime soon – would any of us have thought we would still be living under restrictions more than 8 months later?!
Many of us have put things off, vowing that we will do this “when we get back to normal”.
For now the new “normal”, for a large proportion of us, means:
A Lifetime ISA, or ‘LISA’ as they’re regularly referred to, offers a similar deal to Help to Buy ISAs but with considerable differences which you should watch out for or take advantage of. Some people may be taking advantage of a LISA to save for later in life (over 60), however there are benefits of using a LISA to purchase a property as a first-time buyer. If you wish you can always keep your LISA after purchasing your first property and continue to save
Many of you may have seen the latest headlines regarding the #FreeBritneySpears movement where her fans are concerned about her father acting as her Conservator. Conservatorship is an American legal concept whereby the court appoints a person to manage a person’s affairs if they are deemed to be incapable.
The equivalent of Conservatorship in Scotland is known as Guardianship. A Guardianship Order is a court order which authorises a person to act and make decisions on behalf of an Adult with incapacity. In Scotland, an
Now, possibly more than ever, it is important that those living with dementia and their families look at getting an individual’s legal affairs in order to alleviate the stresses that can arise when their condition worsens.
An individual with a dementia diagnosis can (depending on the stage of their condition) instruct a solicitor to assist them in putting their affairs in order whether this be in the preparation of a Power of Attorney or a Will. The lockdown has not resulted in solicitors being unable
Although lockdown restrictions have eased slightly there is still a significant impact which will be felt by us all for the coming weeks and months.
Where someone has been assessed as lacking capacity and has not put in place a power of attorney, an application requires to be made to the Court for a guardian to be appointed where someone requires to have legal authority for decision making in respect of the incapax adult’s health, welfare, finances and/or property. This was brought into effect some
Today sees the start of Dementia Awareness week in Scotland, which would usually culminate with Alzheimer Scotland’s annual conference. Sadly, the conference will not be taking place this year due to lockdown. However, during this time we can all continue to show support and continue to raise awareness for those living with dementia, their carers and families.
Now, possibly more than ever, it is important that those living with dementia and their families know that getting an individual’s legal affairs in order can alleviate the
The Covid outbreak has led us all having to adapt to different social and working practices. It has also led to many of us considering our mortality and (finally) getting round to that New Year’s resolution of getting our affairs in order. Since lockdown commenced there has certainly been an increase in enquiries about and people preparing or updating their wills. Preparing a will, as many of us know, allows you to decide what happens to your money, property and possessions after your death. So
You have registered the death, organised the funeral and now that you have identified all of the assets your loved one had (and established whether or not they have a Will), you are ready to progress with the administration of the estate. This blog focuses on the procedure where the value of the estate is over £36,000.
You need to now progress with obtaining Confirmation (known as Probate in England & Wales). As detailed in our earlier Blog this is the legal document that gives
You have registered the death, arranged the funeral and now it is time to look at estate administration. The current lockdown period has had a significant impact on the process of administering a deceased person’s estate. The Courts in Scotland, at the time of preparing this Blog, are not currently progressing Commissary work (estate administration). They are, however, looking at how to restart Commissary business soon via remote working. However, even once the Courts have finalised appropriate procedures to restart this business, there will inevitably
In our first blog we advised on how to register a death. Now you (and the funeral director) have the death certificate, you can go about arranging a funeral. Funerals are continuing to take place as normally as possible and families are being encouraged not to delay funerals. The Scottish Government have provided guidance for funeral services during the pandemic and funeral directors are being asked to ensure that social distancing is adhered to.
Some helpful tips:
The death of a loved one is a difficult time for everyone. Not only are they grieving but for many they may have never had to register a death or deal with the winding up of a loved one’s estate. It can all become quite overwhelming.
The Covid-19 outbreak and lockdown of the nation has brought a whole new level of uncertainty. A short series of blogs will follow providing guidance from registering a death, dealing with the funeral arrangements and winding up an estate.
We will donate 10% of the fee to local foodbanks.
Ensuring you have a Will in place not only means that you can decide who you wish to inherit your estate, but it also provides peace of mind and comfort for both you and your family, knowing that your affairs are in order.
The current Coronavirus pandemic has brought into sharp focus the importance of providing for our families should the worst happen. Just because you cannot meet face to face with a solicitor at
Now more than ever, we should be asking the question: “are my affairs in order?”
In these uncertain times, it is prudent planning to consider putting a Will and Power of Attorney in place. A Will, of course, allows you to state what you wish to happen to your assets upon your death and provides your family with some comfort in knowing your affairs will be in order upon your death. A Power of Attorney, on the other hand, allows you to appoint someone to
The Office of Tax Simplification (OTS) has made some recommendations and proposals to overhaul Inheritance Tax (IHT). Whilst these proposals may look good on the surface, the devil is in the detail.
A welcome proposal made by the OTS is the reduction of the seven-year gifting rule to five years. This would see individuals being able to make gifts to their children and only have to survive five years for it to fall outwith their estate for IHT purposes. Perhaps the suggested change to five
When a sole director of a company dies, there can often be difficulties. However, those difficulties are, perhaps, more evident where a sole shareholder dies who is also the sole director of a company.
The general position is that where a company has a number of directors and one of the directors dies, the surviving directors can continue to manage the organisation. If the sole shareholder of a company dies, the directors can continue to manage the company until the deceased shareholder's beneficiaries have the
Choosing who you wish to implement the terms of your Will can be a difficult decision. After all, this is the person you will trust to ensure that your estate is administered according to your wishes. An executor is a person who is appointed by someone who is making a Will (also known as the testator) to carry out their instructions as set out in their Will.
If you have been appointed as an executor, several considerations should be borne in mind. Firstly, as an
When you, or someone close to you, has been diagnosed with a deteriorating health condition thinking about day-to-day practicalities can be difficult, for example managing finances.
To allow someone to manage your day-to-day banking (but not open or close accounts or apply for overdraft) can be arranged by means of a Third Party Mandate. The account holder signs a mandate allowing the third party to pay bills and assist in managing the account on a day-to-day basis. This type of arrangement is suitable for someone
You have made a Will. Congratulations! This now means all of your affairs are in order, your Will can be easily interpreted upon your death and your family will understand your reasons for what you have chosen to include in your Will. Well, not necessarily. It can, at times, be difficult to understand someone's Will after their death and it may be that a Letter of Wishes can clarify matters.
A Letter of Wishes is as it says: a
There can be many reasons for someone requiring a move to a care home from being less able to do the things you used to do, recurring falls or starting to feel lonely. Care homes have trained staff on hand, which may help to remove risks you may face at home. It is perfectly normal to have conflicted feelings about a care home move for yourself or a family member. So what are the things you should think about before moving into care accommodation?
For many, the prospect of making a Will to adequately provide for their family can seem a rather daunting task. However, when you are a business owner, the number of issues to be considered increases. With that in mind, why should business owners make a Will? Is it really that important?
Succession planning is often at the forefront of a business owner's mind to ensure that the business can carry on when they are no longer here. A Will should be
Today sees the introduction of a new Social Security Scotland benefit to assist those on low incomes to meet the costs of a funeral. The payment, known as Funeral Expenses Payment, can help pay for some of the costs of the funeral (burial/cremation fees, travel to arrange or attend funeral, death certificate & other documents). Up to £700 is available for other funeral expenses (e.g. flowers, coffin or funeral director's fees).
The payment will not usually cover all of the costs of the funeral. The
Home Reports provide buyers, solicitors and mortgage lenders with a clear market valuation of residential property on the open market for sale and give detailed information on the condition of the property.
The onus is now with the seller of a property in Scotland, who wishes to sell their residential property on the open market, to provide a home report to any potential buyers. Failure to do so could result in you being fined up to £500.
A Home Report comprises three separate reports these
Are you the owner of a property in a tenement? If you are, can you answer the following:
If you are unable to answer these questions, and repairs are required in your tenement, the starting point is to check the title deeds which relate to your property.
The Office of Tax Simplification (OTS) has made some recommendations and proposals to make changes to Inheritance Tax. Whilst these proposals may look good on the surface, do they actually lead to the elimination of some useful tax breaks such as taper relief?
A welcome proposal made by the OTS is the reduction of the seven-year gifting rule to five years. This would see individuals being able to make gifts to their children and only have to survive five years for it to
Often people will ask - what is the difference between a power of attorney and guardianship or if one is better than the other? Our simple guide below explains the difference.
Power of attorney is a legal document which you ('the grantor') grant in favour of another person ('the attorney') to make decisions relating to your finances, property and/or welfare. In Scotland this is known as a continuing and welfare power of attorney (lasting and enduring power of attorney in England &
Dependent upon your family circumstances, it may be sensible to consider including a liferent provision in your Will. However, what is a liferent exactly and how may it benefit you?
A liferent can be used where you wish your spouse, for instance, to benefit from the income from your assets or be in a position to use those assets, without them having outright entitlement to/ownership of those assets. Instead, the assets will ultimately pass to others; most commonly, your children.
A
It's that time of year again. Sun, sea and sand... it's holiday time.
Multi-generational travel has increased markedly over the past few years. No longer is it simply mum, dad and the children jetting off abroad, it is now mum, dad, the grandparents, the grandchildren etc. Whilst family time on those long summer days is on everyone's mind, it is also important to consider what if something happened to all of us? Do I need a failsafe beneficiary?
Deciding upon what you wish to happen to your body when you die is never an easy thought. What would your family want? Should you be buried? But along with that can often come additional expenditure on top of funeral costs, including purchasing a lair etc. Or should you be cremated and have your ashes scattered in that special place?
Well, now there may be no need to decide between the two if the latest decision emerging from Washington, USA is anything to go by.
If you have a Will in place, it is important to review this on a regular basis to ensure it is up to date with your personal and financial circumstances.
People often think of reviewing matters such as the amount of money to be left to nieces or nephews or who should, in fact, inherit the family heirlooms. However, most don't think to review who they have appointed as their Executor in their Will. So why is this important?
An
Brain Injury Awareness Week 2019 is here - #ActionForBrainInjuryWeek #ABIWeek, culminating with #HatsForHeadway on Friday 24th May.
As is often the case, family members can face numerous difficulties as the result of a loved one succumbing to a brain injury - if they no longer have capacity to make decisions for themselves and if the family is not aware of what steps they need to take. Difficulties can arise in relation to medical or financial decisions that need to be made and no-one having
No-one likes to contemplate their own death or think of the death of a loved one. It is however an important topic of conversation to have with your family and friends and is encouraged as part of the Dying Matters Awareness Week. Doing this at an early stage allows you to have an unpressured conversation at a time that suits you and not at a time of ill health or crisis.
Conversations of this nature are a prompt to discuss your affairs and the
Once appointed by the Court to act as Financial Guardian there are certain administrative responsibilities which you will have to fulfill, these are detailed below. By taking on this role you are accepting this responsibility and it is therefore important that you consider if you have the time and ability to carry out the duties of a Financial Guardian.
The Sheriff may order that you obtain a Bond of Caution (usually within 4 weeks of your date of appointment). A Bond of
Many families wish to ensure that their family are provided for in the future. They have worked hard to be able to own their property and do not want their estate to be exhausted by paying care costs. Beware, there are many things to consider before gifting your property to avoid care costs.
Since 2002 deferred payment schemes have been available for care home residents however, many are unaware of their availability.
Care home residents who have insufficient income and capital (excluding the value of their property) to meet care home fees may enter into an agreement with their local authority to defer payment of part of their contribution towards care costs. They can settle these sums with the local authority at a later date when their home is eventually sold. A deferred payment agreement is an agreement
