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Fergusson Law News & Legal Advice
  • Digital Assets in your Will

    We all use the web daily. The number of online accounts and the value of digital assets are only going to increase. So why do so few people consider what will happen to their digital assets when they die?

    The story of Gerald Cotten may ring a bell with you.  £100m locked up, with his executors and heirs unable to reach it.   Read all about it here.

    Think of two categories.

    1. Financial Information - While not being an asset itself, it can lead us to our assets and liabilities such as online bank accounts, savings and investments, PayPal, eBay, and shopping accounts.
    2. Digital Assets - With value in their own right, whether a character in World of Warcraft, our music downloads or a Kindle library.

    You might wonder what the problem is. The law covers all of this either with wills, for those who make them, or the rules on intestacy for those who do not. Why are digital assets any different to paper-based ones? Executors or next of kin just ingather the assets of the deceased, settle their liabilities, pay any inheritance tax that is due and then distribute the estate. There are, in fact, 3 problems:

    • access
    • valuation
    • location

    Most of the internet or digital service providers regard their service as a lifetime service and do not see the concept of a digital legacy at all. It is a common contractual term that when an account becomes permanently inactive it will be deleted. It would be much better for you to engage with the service provider and ensure that you have made your wishes known as to what you would like to happen after your death. For example, state that access should be passed to a certain individual. Google provides an Inactive Account Manager service for this purpose.  Apple say that their digital downloads are for your lifetime only. Similarly, your Photos in iCloud will disappear. You could store your Apple ID and password with your Will so that executors can deal with your data. You might be surprised to know that the balance on some dormant accounts could be paid to the Treasury of Luxembourg or indeed to the Malta Lotteries and Gaming Authority.

  • Intestacy For Buy To Let Investors
    buy to let properties and intestacy

    Dying Intestate

    Do you have a Will? If you die without one, your estate may not be distributed in the way you would have intended, and it might cause real problems for your family. The issue is of particular concern to buy-to-let investors, who own flats and houses in addition to their family home.

    If you do not have a Will in Scotland, your estate is divided according to the rules of intestacy.

    Firstly, if there is a surviving spouse they get PRIOR RIGHTS.

    • The family home (if they live there) up to a value of £473,000
    • Contents (if they live there) up to a value of £29,000
    • Cash - £50,000 if there are children, £89,000 if there are none.

    If there are moveable assets left after prior rights, LEGAL RIGHTS apply

    These only apply to moveable assets – that is everything except houses, flats and land.

    • Surviving spouse and children: spouse gets 1/3rd of moveable assets, children between them share 1/3rd of moveable assets. Final 1/3  of moveable assets goes into FREE ESTATE
    • Surviving spouse only: s/he receives half net moveable assets.  The other half to FREE ESTATE
    • Surviving children only: they share half net moveable assets. The other half to FREE ESTATE

    everything left over after Prior and Legal Rights falls into the  FREE ESTATE

    Therefore any other houses and land you own (including your buy-to-let properties), and all the cash etc. left from Rights will be distributed in the following strict order of succession:

    • Your children come first
    • If you have parents and siblings they share your free estate
    • If you only have parents, they take your free estate
    • If you have siblings, but no parents, they inherit (or their children if they have predeceased)
    • If you have no children, parents or siblings your surviving spouse comes next

    It then goes on to uncles/aunts and other more distant relatives.  But the important point is that your wife or husband is very low on the list.  Your nieces and nephews may have better rights to your free estate than your surviving spouse. All the cash remaining may go to relatives (Laughing Heirs) whom you have never met.    If no-one can be found then the Scottish  Government gets it.

  • DISINHERITING THE FAMILY? TAKE ADVICE BEFORE YOU DO IT. 2018 UPDATE

    A recent ruling in the Court of Appeal in England and Wales highlights that although you can leave your money to whom you like there are some limitations, wherever you live in the UK.

    England, Scotland and Wales, like the United States, have a tradition of "testamentary freedom" - the idea being that you can, in theory, leave your wealth to whoever you like.

    Countries like France, Spain and the Republic of Ireland, by contrast, have fixed heirship shares.

    However in Scotland, children and spouses may have "legal rights" to a portion of the deceased's estate.

    A surviving spouse, or civil partner and children are entitled to part of the deceased person's moveable estate. In Scots law, heritable property means land and buildings, while moveable estate includes such things as money, shares, cars, furniture and jewellery.


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