good life, good death, good grief

The Reluctant Planner's Guide to Death and Dying

Writing a Will

The third and final piece of the legal jigsaw to get sorted is my will.

This is the bit of end of life planning everyone thinks they understand. It means distant aunts leaving you millions, or spiteing the family and leaving it to the cats' home. For creative types, it means pre-recording a video setting out a series of tasks that need to be completed before relatives get their grubby mitts on the cash. At least, that's the myth-making about wills. The reality, no surprise to say, is somewhat more prosaic.

Currently, I'm intestate (i.e. I have no will) - a common situation, but far from ideal. I wasn't unduly worried by this as until recently, I had neither assets to dispose of, nor dependents. The laws on intestacy provide a hierarchy of relatives who have a claim on your estate, from parents, siblings, getting more remote before ending in the ultimate backstop - the Crown. (Yes, if there really is no-one for you to leave your assets to, the state gets it.) But with parents and sister surviving me, and on good terms, I wasn't worried where my meagre assets would end up.

It is messy and uncertain to leave it to intestacy rules though. It's very inadvisable. Many a family has ended up unexpectedly quarrelling over a loved one's assets. Far better to pre-empt this and get a will sorted.

In my particular case, I now have even more reason to get it sorted. I'm co-habiting, but not yet married. Couples who are not married or in a civil partnership have no automatic right to inherit. I would be leaving a mess there straight away.

More importantly still, I now have a four month old baby daughter. I need to make provision for her financially, and name a guardian for her in the event that both me and my partner die - a non-financial aspect of will-making that is sometimes forgotten.

My plan is to leave everything to my partner in the first instance, and if she pre-deceases me, leave everything to my daughter, or split it equally between my daughter and any other offspring I may have in future. Does this seem feasible? How would I put this into action? I again turn to David Borrowman, of Solicitors for Older People:

“Yes it absolutely is feasible, Robert. In fact, that is the commonest form of will. You don’t need to name children – you could say ‘such of my children as are in life at the time of my death’ which would bring in children born after the will was executed.”

Would it be possible to make Jo, my partner, the executor of the will, even if she's the sole beneficiary? Would I need a back-up? My baby daughter Bonnie obviously can't be executor...

“Yes,” says David. “You can be an executor and beneficiary in a will. Again that is very common. I think you are right to think of a ‘substitute’ executor – someone you can trust. Whilst any children are infants it can’t be them – it could be another family member for example. With any luck they may never be called upon. But you should think of your will as a living document – revisit it as your family develops and you may want to make changes – such as replacing the substitute executor you might choose now with your daughter who has become adult.”

That, I hope, safeguards the major part of my family's financial affairs. I may want to recognise other people in my will though, with specific gifts. I have a vague recollection it is possible to append a list of specific bequests to my will for my executor to carry though. The classic example of this being granny wanting to leave her antique clock/collection of porcelain/music box to a specific grandchild.

These things might not be major enough to write into the will, but it solves squabbles between family members to specify in advance who gets what. Have I remembered correctly?

“Another yes, Robert!” says David. “Many wills allow a handwritten document by the testator (the person making a will) to be followed by executor and commonly such documents list a series of small bequests to different people. This prevents wills becoming too unwieldy and of course the list can be updated from time to time by the testator without having to change the will”.

Then, I'd like to name my partner's sister as guardian for Bonnie if anything happens to the two of us. She lives round the corner, so it would save Bonnie being uprooted. Is that straightforward to do?

“Yes it is and it is common when people have young children. However, strictly speaking making such a provision in your will is not legally binding – you can’t ‘leave’ your children to others. Having said that, a statement by you to that effect would be a powerful statement of your wishes. It is difficult to see how that could be challenged unless clearly the provision you suggested was not in the best interests of the children.”

There are plenty more practical things I need to sort - my funeral wishes, life insurance, my digital legacy - which means plenty more blogging to come! But this puts me in a position to sit down and get the main legal documents sorted, which will be a weight off my mind.

Further Info

Citizens Advice Scotland - information on making a will

Law Society of Scotland - making a will guidance and video

Will Aid & Will Relief Scotland - charity will-making schemes

Inheritance Law in Scotland - in depth Scottish Government briefing [pdf]

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Bereavement Charter for Scotland