As we get older we face new problems:

Mental Incapacity

As we get older each of us faces a significant risk that we will lose our ability to deal with our affairs. If that happens then often the only remedy is to apply to the Court for a Guardianship Order which is expensive, time consuming and usually does not really achieve the result that you wish.

Executry Costs

When you die you will probably need a solicitor to wind up your estate. A common complaint is that it takes to long and costs too much.

Indicative Executry Costs:

(Based on independent assessments from the Auditor of Court)
(Assumes 1 house and up to 8 assets)

£1,962 (up to £100,000)
£4,195 (up to £200,000)
£6,897 (up to £300,000)
£9,130 (up to £400,000)
£10,775 (up to £500,000)
£12,600 (up to £600,000)

All including VAT and disbursements

Sideways Disinheritance

This not common but it does happen. One of a couple may die. The survivor may re-marry. The survivor may die next with the result that the whole estate passes to the new spouse. That spouse then fails to make proper Will and on his or her death your whole estate passes to another family. Accordingly your family is disinherited usually because of inadvertence.

Children’s Legal Rights

Your children can claim a share of your moveable estate when the first parent dies and can claim a larger share of the estate when the second parent dies. It does not matter whether you have a Will or not. It does not matter what you have said in your Will, your children can still claim their share of the estate. Sometimes this is not what the parent wants and often it is not in the child’s best interest. There is no age limit for making such a claim.

The children’s claim is limited to your moveable estate which is generally everything apart from your house but it is often the case that the parent has gone into sheltered accommodation or indeed into care, the house has been sold and accordingly the child’s claim is on the whole estate.

Children Inheriting in the Wrong Circumstances

Unfortunately, it is not uncommon for a client’s children to have problems e.g. alcohol problems, drug problems, gambling problems, shaky marriages or inheritance tax problems. Remember 1 in 3 marriages end in divorce. A child may also be vulnerable and easy led by others. In these circumstances, it is unwise to leave a large share of your estate to a child with such problems.

If you are aware of such problems when you make your Will, then the will-writer will take those problems into account when preparing the Will. However such problems may be unknown to you or may develop after you have made the Will but before you die.

The result can be that while you thought you were doing the best for your family, you were sometimes achieving the very opposite.

Care Costs

At present 1 in 3 women over 65 and 1 in 4 men are likely to go into care. Even worse, of the next generation aged between 45 and 65 it is anticipated that 1 in 2 will go into care.

If you go into care the Council can take everything over £15,250.

If your total assets are over £24,750*, you are required to pay in full.

Between £24,750* and £15,250*, you pay on a sliding scale.

Once your assets get down to £15,250* you stop paying.

So only the last £15,250 is protected.


NB: Your income is taken towards your care costs. The Scottish Government makes a contribution (usually £237 per week) towards your care costs. This is known as Free Personal Care.

However your income contribution and the Free Personal Care contribution is usually well short of the total cost. It is the shortfall which is paid from your capital including if necessary your house.

*From April 2012
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