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Contesting A Will In Scotland - Disputed Grant of Confirmation in probate

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Financial Provision For Dependents In Scotland

Understanding the position of a dependent:
It should be stressed that the law in Scotland in regards to the legal rights of dependents for financial support is very different to the law in England and Wales. There can be situations where a will is made perfectly legally and is recognised as such by a Scottish court of law, and yet someone can still contest it. In Scotland a person who was a dependent and reliant on the deceased for financial assistance may challenge a will because they believe that they have not been adequately provided for in the will. In many cases this is often a child who has a legal right to claim a certain amount of the assets of the deceased, in order to provide for them until they are of an age where they can do so themselves.

Legal Rights Limited To Close Relatives:
Only a spouse, civil partner, children (legitimate or illegitimate) or their descendants can challenge the distribution of assets in a will and claim their legal rights instead. A beneficiary who is not a relative with legal rights cannot challenge the will. There are time limits for challenging a will and legal advice should be sought at the first opportunity.

Why you should make a will

  1. Failing to make a will leaves those you love with a big problem to sort out -losing you was hard enough for them. Don't put them through any further unnecessary pain.
  2. Don't let the state decide what happens to your assets when you die. There's a risk that you'll be handing more money than you need to the Government in inheritance tax instead of to those you love.
  3. Wills are not just for the rich. In fact, with property prices rising so rapidly, even those with modest assets can be stung for inheritance tax. Any estate, and that includes the value of everything from the few pounds you have in a savings account to your car, jewellery and the contents of your home, as well as the property itself is subject to inheritance tax. Even if you don't think your assets amount to enough to justify making a will, house price inflation could mean your estate is liable in future.`
  4. If you're unmarried, your partner could get nothing and could indeed be thrown out of your home should you die (if the home was in your name only) as co-habitees have no legal rights to inherit.
  5. It's easy - at the simplest level, you can do it yourself with a Will kit. Just make sure that you keep it up to date and the wording isn't ambiguous - you wouldn't want it to be invalid because it's not signed and witnessed in the right way. If you're unsure about these things, find a solicitor. Ask friends and family for recommendations. If you dislike the idea of a lawyer being in charge, appoint a friend or family member, not a solicitor, as the executor of your will.
  6. Planning ahead can save an inheritance tax liability - Your child will inherit your property, but not all of your estate if it's liable for inheritance tax. Planning ahead, however, can save an inheritance tax liability, as you could start to pass assets to him or her before your death. It's a myth that only the rich pay inheritance tax yet it's avoidable. Writing a will is an ideal time to draw up a list of your assets, so your solicitor or financial adviser can recommend ways of avoiding inheritance tax.
  7. It's a small price to pay for peace of mind - You may not want to pay a lawyer to draw up a will, but it may be a relatively small price to save your family a lot of paperwork afterwards. If you employ a lawyer costs vary depending on the size of the law firm, its location and the complexity of your will, but expect to pay £50 to £200 for a single person and up to £300 for a couple, more if you want advice about tax. It's always difficult to talk to those close to you about death -a lawyer may be easier to talk to about such sensitive matters such as funeral arrangements etc.
  8. Make things easy for the executor -Leaving a list of your assets and liabilities is the least you can do to the person you appoint to sort out your estate and make sure your wishes are carried out after your death. Many parents nominate their spouse and eldest child or children as executors. It's advisable to appoint two executors, in case one dies before you, and then ideally they should be younger than you. Solicitors can act in this capacity but will charge. Executors can be beneficiaries under the will, but a beneficiary or their spouse must not witness the will or they will lose the gift. They can also claim expenses for carrying out the task. Check that any relative or friend you appoint as executor is happy to do so, there's a lot of paperwork and time involved in arranging the funeral and dealing with probate such as collecting money owed to you and paying your debts.