Explanation of Will Terms

yourwill.scot presents the quick and easy guide to understanding your Will

Section of the detail of the WillWhat does it mean?
I appoint McVey & Murricane Nominees Limited (SC351816) 13 Bath Street, Glasgow G2 1BW (“MX”), to be my executors and trustees in the event of my death; Appointment of Executors
The will appoints McVey & Murricane Nominees Limited as your executors. It is necessary to appoint executors who are obliged to ask the Court to confirm their appointment and grant authority to them to wind up your estate. This process is called obtaining Confirmation, although you may be more familiar with the Anglo/American term, Probate.
I wish my funeral to accord with the Funeral Instructions. The instructions are given here on any funeral preferences that you may have. Your executors will observe your wishes regarding your funeral, but remember that the cost of your funeral will be a debt on the estate, and therefore one of the items which must be paid first, before any legal rights, legacies, or residue can be paid.
My domicile is Scottish; Domicile
Domicile has a special legal meaning. If you live in Scotland and regard Scotland as your home the probability is that you will be “domiciled” in Scotland and your will and estate administration will be governed by Scots Law, no matter where within the UK your property is located. If you own property abroad, especially houses, you should consult a lawyer in the country where it is situated as some countries require a local Will to be made.
I revoke all prior wills and testamentary writings; I direct MX to give effect to the Further Instructions and any future writings subscribed by me however informal provided that in the opinion of MX they clearly express my intentions This section explains that your Will will override any previous Wills; additionally it provides that anything you may write and sign in the future can be given authority. However, such informal documents are not a great idea and you are best updating your Will.
After my death I authorise all entities with whom (a) I have a digital or electronic account or created an online identity or presence; or (b) I have lodged material or digital files (all “Online Assets”) to observe and accept the instructions of MX as to the continuation, deletion or transfer of the Online Assets as if such instructions were from me; MX shall canvass opinions from my family or friends as to the Online Assets but MX shall make the final decision; Digital Assets
These include, for example, your electronic music, book, and film collections. Many digital assets are not in fact owned by you, as a study of the small print which you will have clicked to confirm having read before downloading will reveal. However you may have paid good money for it or invested enormous time and emotional energy and may wish your beneficiaries to be able to access your accounts. You will authorises those entities with whom you have on line accounts to accept instructions from your executors
For each row within the Legacy Table, I direct MX to pay or make over the ITEM to the person or persons detailed in LEGACY RECIPIENT; Any legacy granted by me in any writing shall be paid or made over as soon as MX consider practicable after my death without interest and free of delivery expenses and taxes in respect of my death Legacies
We now come to the part of your estate which you can freely dispose of in terms of your Will. Before specifying what you want to happen to the residue of your estate, you might want to leave a legacy or legacies to named individuals or charities. A legacy can be a fixed sum of money, or of particular items such as jewellery or watches which might have sentimental value. If however you leave an item as a legacy in your Will it does not mean that you can’t sell or dispose of it during your life; all that happens if an item is no longer your property when you die is that the legacy falls.
If making a legacy of an item, you should be specific in describing it so that your executors can readily identify it. You do not have to make legacies. If you wish you can simply dispose of the residue of your estate in your Will. Many people do not leave legacies and you should not feel a compunction to leave a legacy.

If after paying your debts and legal rights your estate is insufficient to meet all your financial legacies then they would be reduced pro rata. For example if you left two people a legacy of £10,000 each, and there was only £18,000 left in your estate, your legatees would each receive £9,000
For each row within the Residue Table, I direct MX to pay or make over that percentage of the residue of my estate (“residue”) equal to the SHARE to the person or persons detailed in BENEFICIARY. Unless otherwise stated where the person detailed under BENEFICIARY predeceases me (a) leaving issue (including adopted issue) who shall survive me or be unborn at the date of my death, each member of a generation of issue of such predeceasing person shall share equally in the part of the Residue, both original and accresced, which would have fallen to its parent if in life or (b) and if the BENEFICIARY fails to attain the age of 18 years leaving no issue who survives my death to pay and make over the SHARE to such persons who would have been entitled if the BENEFICIARY had never existed; Residue
After your debts, if any are paid, and any legal rights (see below) honoured, and any legacies paid or delivered, what is left is the residue of your estate. Unlike a financial legacy, the residue cannot be a predetermined sum – it is simply what is left. You can leave the residue to one named person, or a group of named persons, or to a class of persons (eg children), in any share you wish. There may in fact be no residue if your estate has been exhausted by paying legacies – in the example above under legacies there would be no residue. If however £21,000 of the estate was left, each legatee would get £10,000 and £1,000 would be left as residue The standard Will tries to anticipate what you would wish to happen in the event of a beneficiary of residue predeceasing you. Typically you might wish the children of a predeceasing beneficiary to inherit the share which would have fallen to their parent if alive. If that is not your wish you should let us know as this simple form of Will may not be appropriate for you.
Remember, you can always change or update your Will and if you change your mind about beneficiary, or feel that circumstances have changed so that the scheme of your Will no longer appears “right” you should do so. It is often the case that those to whom you leave all or part of the residue of your estate are also those who are entitled to claim legal rights – see below. The law makes a presumption that if you leave all or part of your residue, or make a legacy, to such a person then that is in full satisfaction of their legal rights. If such a person wishes to claim their legal rights instead of accepting your provision, they can choose to do so. If they do, they cannot also claim any benefit under your will.
I direct MX to hold any part of my estate ("Trust Fund") held for a beneficiary under the age of 18 years at the date of my death (“Young Person”) for the following purposes: (1) to accumulate the income arising from the Trust Fund by investing the Trust Fund, any surplus and any income in accordance with the powers conferred in this Will (“Relevant Sums”) until the Young Person attains 18 years when payment of the Relevant Sums shall be made to the Young Person, the Relevant Sums not vesting in the Young Person until the date they are paid to the Young Person (“Vested Date”); (2) if a Young Person fails to survive the Vested Date leaving issue (including adopted issue or unborn issue) each member of a generation of issue (of such predeceasing Young Person) as survives and attains the age of 18 years shall share equally in the share of the Residue, both original and accresced, which would have fallen to its parent if in life; and if the Young Person fails to attain the age of 18 years leaving no issue who survives and attains the age of 18 to hold the Relevant Sums and any income accumulated at the date of such failure on behalf of the beneficiaries who would have been entitled if the Young Person had never existed; (3) if any accumulation of income of the Trust Fund is prohibited by law by reason of any event the income affected by such prohibition shall be paid or applied to the Young Person; (4) MX shall have power to pay or make over part of the Relevant Sums for such purposes including the maintenance, education and advancement in life of the Young Person alone or of the Young Person's issue or the spouse of any of these persons with such powers and discretions exercisable by MX or by any other person or persons and on such terms as MX shall think fit; (5) there shall be no apportionment as between capital and income on any occasion. Trust Provisions
The Will provides for what happens should a part of your estate be inherited by someone under 18 years of age. It sets up a trust fund for their benefit, and sets forth what happens should such a person fail to attain the age of 18, with or without children. The executors also would have the power to spend the fund for the benefit of such a person before they reach the age of 18- to further their education for example.
If any part of my estate is held for a person who lacks full legal capacity (“Assisted Person”) MX shall have full power either to pay or apply the whole or any part of the income or capital falling to the Assisted Person for his or her benefit in any manner MX think proper, or to retain the same until such capacity is attained, or to pay over the same to the legal guardian or the person for the time being having the custody of the Assisted Person whose receipt shall be a sufficient discharge to my executors. MX shall have the fullest powers of retention, realisation, investment, appropriation, transfer of property without realisation and management of my estate as if they were absolute beneficial owners; and shall have power to resign office and to appoint one or more of their own number to act as solicitor or agent in any other capacity and to allow him or them the same remuneration to which he or they would have been entitled if not an executor or executors. Incapacity
The Will provides for what happens should a part of your estate be inherited by someone who is unable to manage their affairs. Your executors would be able to spend the fund for the benefit of the person or to pay all or part of the fund to a guardian. If the person were to recover their capacity, the fund, or that part of it not already applied in furtherance of the above objects would then be paid over to the person.

Administration
The Will sets forth the executors powers of administration, including the power to appoint solicitors to wind up the estate and pay them legal fees for doing so.

Some Legal Background

Legal Rights

When making a will you should be aware that in Scotland an individual can’t leave his property entirely as he or she wishes and Scots law provides protection to a surviving spouse and children.
A surviving spouse or civil partner and children are entitled to certain "legal rights" out of the deceased person's moveable estate. In Scots law, heritable property means land and buildings, while moveable property includes such things as money, shares, cars, furniture and jewellery.


The surviving spouse or civil partner is entitled to one-third of the deceased's moveable estate if the deceased left children or descendants of children, or to one-half of it if the deceased left no such children or descendants.


The children are collectively entitled to one-third of the deceased's moveable estate if the deceased left a spouse or civil partner, or to one-half of it if the deceased left no spouse or civil partner. Each child has an equal claim. Where a child would have had a claim had he (she) not died before his (her) parent, his (her) descendants may claim his (her) share by the principle known as representation.


The terms 'child', 'children' and 'issue' or other similar terms in wills are understood to include both the legitimate and the illegitimate unless there is an express exclusion of the one or the other.


The position of adopted children is the same as that of natural children for the purposes of succession. Thus an adopted child has the same rights of succession in relation to its adoptive parent's estate as a natural child, and adoptive parents have the same rights of succession that they would have, had they been natural parents of the child.


These Legal Rights form a debt against your estate and must be paid before any legacies or residue.


The Scottish Government is currently reviewing the whole position regarding Legal Rights so these might change.


If after paying your debts and legal rights your estate is insufficient to meet all your financial legacies then they would be reduced pro rata. For example if you left two people a legacy of £10,000 each, and there was only £18,000 left in your estate, your legatees would each receive £9,000

Debts

Before any beneficiary under your will can receive payment, your executors must settle any debts you have at the time of your death, using the money or property you leave behind.


Houses

Any houses you own will form part of your estate and your executor may have to sell such property to raise cash to implement the provisions of your will. If you own a house along with another person, then your share may form part of your estate and fall to be dealt with in terms of the will. The person along with whom you own the house may or may not be the person inheriting your share or its cash equivalent in terms of your will, so the whole house may need to be sold to realise cash to implement the will. However the title to the house may contain a “special destination” meaning that on the death of one sharing owner the other automatically has title to the house simply by surviving, and your share in the house will not be disposed of in terms of the will. As this is an important point you should ask your conveyancing solicitor to clarify which case applies to your title.