31st October 2016

Wills & Thrills: 3 succession planning scares to avoid!

As a fan of horror films, this is a time of year that I always enjoy: the TV schedules are filled with marathons of blood-curdling, bone-chilling classics.  As a solicitor regularly advising on Wills and estate-planning issues, this gives me a rare excuse to combine these deathly interests.

Succession planningis the way in which we plan for what should happen after our own death, and is something that can really haunt your family if not done properly.  So to help make sure your affairs are in order, here are three horror shows that you can avoid forcing your loved ones to sit through:

The ex-Bride of Frankenstein

It is vitally important that you review your Will if you separate or divorce from your spouse or civil partner.

For spouses who are separated but not divorced, the situation is particularly urgent.  No matter how long you have been separated, your Will still stands and so your ex-spouse would still be entitled to act as your executor and inherit your estate if that is what the Will says.  The same is of course true for unmarried couples who feature in each other’s Wills.

For divorcees, the situation is about to become a little easier.  The new Succession (Scotland) Act 2016 provides that, for deaths on or after 1 November 2016, the deceased person’s Will is to be read as though their ex-spouse had pre-deceased.  This will mean that even if the deceased person had not actually gotten round to changing their Will, their ex-spouse would not be appointed as executor or stand to inherit anything.  This brings Scotland into line with the position that has long been the case in the rest of the UK, which will hopefully mean fewer disasters for people who have consulted Google Q.C. rather than an experienced solicitor.  However relying on this rule is no substitute for actively reviewing the Will and taking good advice.  For instance, the new rule will do nothing to remove people from your Will such as the children or parents of your ex-spouse:  you still need to take action if you want to take them out of the Will.

Rosemary’s Baby (is not in her Will)

There is a little-known rule in Scots law with the snappy Latin title of the conditio si testator sine liberis decesserit – just imagine hearing it being chanted through your bedroom wall at midnight.  If it sounds scary, it’s because it is!

This rule tells us that if a child is born after the date of their parent’s Will, and if the Will does not provide for that child and the parent later dies, then the child can revoke the parent’s Will.  This leaves the parent intestate (i.e. dead without a Will).  The parent’s estate would then be divided in terms of the “default rules” of intestacy.  This could have frightening implications for unmarried couples, as the laws of intestacy are particularly unkind to unmarried partners or cohabitees of the deceased person.

The answer to this is simply ensuring that you apply “good house-keeping” by reviewing your Will after any significant changes to your family – hatches, matches and dispatches.  This is not a difficult trap to avoid, but it can be a real chiller – particularly if you have a “Damian” in your family!

The Inheri-Tax-Us Chainsaw Massacre

You can’t run or hide from death and taxes, however you certainly can escape from death-taxes.  Inheritance tax is charged at 40% for estates over the allowance known as the nil rate band (currently £325,000 per individual), and so it has the potential to really slash the inheritance that you’d hope to pass to your family.

You can outrun this tax-monster, but it will take some good forward-planning.  There are many ways in which to do this – however the simplest tends to be with the gift of generosity.  By being generous to your family (with gifts) and to yourself (by spending money), you can reduce the value of your taxable estate.  There are many rules about different kinds and sizes of gifts:  some gifts will leave your estate immediately, while others will require you to survive for seven years before their value will leave your estate.  If you struggle to remember that crucial number of years, just remember it is the same as the number of blood-chilling films in both the Saw and Police Academy series – though I’d recommend burning those rather than giving them away.

 “Who you gonna call?”

Don’t go screaming into the abyss – Blackadders’ Private Client Team are available to help with all your worldly (and other-wordly) concerns.  We are also available to travel to see clients at home if they cannot make it into our office.

Stewart Dunbar
Associate Solicitor – Tax, Trust & Care



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