A Guide To Making A Will In Scotland

last will and testament

A will is a legal document that details a person’s wishes on how they want their property to be distributed after their death, and who will manage the property until it is distributed. 

In this post we will cover: 

  • The requirements for making a will in Scotland.
  • The importance of making a will
  • What to include when making a will in Scotland
  • Do you need a solicitor for making a will in Scotland?
  • Should I use a solicitor when making a will in Scotland?
  • When is it best to use a solicitor?
  • How much does making a will in Scotland cost?
  • Executors
  • Changing your will
  • How to change a will?
  • How to destroy a will
  • Setting up a trust
  • Challenging a will
  • Where do I keep a will?
  • Is a handwritten will legal in Scotland?
  • Power of attorney
  • Living will

Requirements for Making a Will in Scotland.

If you’re considering making a will in Scotland, here are the requirements. 

Firstly, you must be over 12 years old and be of sound mind (in England, you must be over 18).

It must be written voluntarily without any pressure from any other people.

It must be made in writing, signed on every page by the person writing it, and there must be a witness present. 

As soon as it is signed, the will is valid. 

Why is it Important to Make a Will

Making a will is important, even if you don’t have much money, many belongings or any property. 

When you die without a will, it is known as dying intestate.

In these circumstances, rights of succession rules decide how your belongings, property and money are distributed after you die. 

If this happens, your money, property and personal possessions may not be distributed how you want them to be. 

You can read more here about the rights of succession.

Unmarried or Not in a Civil Partnership

If you aren’t married and are not in a civil partnership with your partner, they won’t automatically inherit your money, belongings and property. Even if you’ve been together or living together for a long time. 

Your partner will have to go to court to try and get these things. In these circumstances, it’s important to make a will so that your partner inherits what you want them to get. 

Even if you are married or are in a civil partnership, it’s a good idea to make a will so that you can decide what your partner, family members, and anyone else inherits after you pass. 

Children in your Will

In your will, you can name a guardian for your children and leave instructions on how they should be cared for after you die. You can also consider setting up a trust for them.

Inheritance Tax

You may be able to reduce the inheritance tax payable on your beneficiaries inheritance if you get inheritance tax advice when creating your will. 

Digital Assets

If you have digital assets like online shopping accounts with credit and social media accounts with personal information, you need to make plans in your will on what to do with them. 

Talk to us today if you’re thinking about making a will. Our highly capable team is always happy to help you with making a will in Scotland. 

What Should I Include When Making a Will in Scotland?

Taking time to think about what you want to include in your will can save you time and money when using a solicitor. 

Some things to consider are: 

  • What property and possessions you own, and how much money you have. 
  • What digital assets you have, i.e. photographs & online gaming accounts.
  • Who you want to leave your money, property and possessions to. You should make a list of all the people you want to leave things to. These people are called beneficiaries. 
  • If you have children under 16, you should think about who will look after them and if any provisions need to be made for older children. 
  • Who will manage your estate and carry out your directions set out in the will. These people are called executors.
  • Any arrangements you would like to be made for your funeral. 
  • Any charitable organisations you would like to donate to. 

Moreover, when leaving things to transgender people, you must get advice. You may have to refer to them by their current gender and not their birth gender. 

You should also be careful when including instructions about property in your will. If there is a ‘survivorship destination’ clause in the title deeds, it can override what the will says about the property.

Do you Need a Solicitor for Making a Will in Scotland?

If your estate and assets are straightforward, you may be able to write a will for yourself. 

There is online will software that you can use to do this. Be careful though. Easy to make mistakes can cause big problems later on.

If you think you need legal advice, you may want to use a solicitor to avoid problems later down the line. 

They can help you with the legal requirements when making a will in Scotland, as well as checking your identity, and ensuring you are of sound mind.

Should I Use a Solicitor When Making a Will in Scotland?

Put simply, it’s best that you use a solicitor when making a will in Scotland. 

Writing a will yourself can be troublesome. 

For example, if you make any mistakes, this could result in complicated issues when it comes to distributing your inheritance. 

Mistakes and misunderstandings that lead to legal disputes can result in high costs that will reduce the amount of your estate. 

Solicitors will ensure your will is legally valid and the instructions are clear for executors.

Here are some common mistakes people make when writing wills without legal advice. 

  • The will is not legally valid because the necessary formal requirements are not included.
  • Not including all of your money, property and belongings in the will. If this happens, everything unlisted will be distributed according to the rules of intestacy. This may not be how you want it to be distributed. 
  • Not including details of what happens if beneficiaries die before you or before the estate is settled. Your will should take into account what will happen to a beneficiary’s share of the estate in this situation. 
  • Not signing or having witnesses present when changing the will. If this happens, the changes may not be valid. 
  • Being unaware of how marriage or civil partnership affects your will. And being unaware of the rules that enable dependents to claim more from your will if they think they are entitled to it. Legal rights rules mean the provisions of the will could be overridden in this situation.

When Should I Use a Solicitor?

Writing a will can be unclear and complicated in many situations. It’s best to use a solicitor when you are not 100% sure to avoid confusion later on. 

Here are some circumstances where it is advisable to use a solicitor: 

  • When you are a joint owner of a property with someone who you aren’t married to or in a civil partnership with. 
  • You need to set up a provision like a trust or similar for a dependant who cannot care for themselves. 
  • There are family members who may claim the will. Children from a previous marriage are an example of this. 
  • Your permanent home is outside of the UK.
  • You are not a British citizen.
  • You have property overseas but are a resident here.
  • You own or are part of a business. 
  • You would like your possessions to be distributed by another legal system.

How Much Does it Cost to Write a Will in Scotland?

On average, it costs between £144 to £240 for a solicitor to draw up a will for you. 

Depending on the complexity of the will, the price could be as high as £300 or more. 

Talk to us about your will today, and we’ll give you a price based on your specific circumstances.

You may also be able to get help with the legal costs of a will via legal aid.

 A solicitor will have to consider that you need advice on Scots law, and you will need to be financially eligible for this. 

Executers

Executors are the people who sort out your estate and carry out your wishes after you die. Your estate is all of your property and possessions. 

The job of your executors is administrative. 

They collect all the assets of your estate and handle all of the paperwork. 

Their tasks include paying for things like debts, tax, the funeral and administration costs out of money in your estate. 

They also pay out the financial assets and other possessions as well as transferring property to beneficiaries. 

If there isn’t enough money in the estate to cover debts, you should seek further help. 

Who Should I Choose as Executors?

It’s a good idea to appoint alternative executors in case anything happens to one of them. 

Common executors are:

  • Friends and family
  • Solicitors & accountants
  • Banks

You should make sure your executor is happy and capable of doing the job. It can take a lot of work and responsibility, and they can refuse if they don’t want to do it. 

If you don’t appoint any executors in your will, the court can choose one for you. They will also choose one for you if an executor dies or you haven’t appointed one before you die. 

Changing your Will

If your personal circumstances change, i.e. you get divorced, it’s important to update your will so that your money, property and personal possessions are distributed how you want them to be. 

The law can be complicated when changing your will, and you may want to get legal advice. 

Your will may need to be altered in circumstances like:

  • Having children
  • Getting married or entering a civil partnership
  • Getting divorced or ending a civil partnership
  • You sell or gift your assets
  • You inherit money or property.

It’s a good idea to talk to a solicitor if any of these circumstances change, or anything else applies to you. 

How to Change a Will?

If your circumstances change, you may want to change your will. You must not do this by amending the original will yourself after it has been signed. These changes may not be legally valid.

You can change your will by making a codicil to the will or a new will. 

A codicil is used for making some alterations to the will. It’s suitable for very straightforward changes. It must be signed by the person who made the will and witnessed. The witness does not have to be the same person who was present for the original will. 

For major changes to the will, it’s usually best to make a new will. A new will start with a clause that states “this will revokes any previous wills and codicils”. The old will(s) will no longer be valid and should be destroyed. 

How to Destroy a Will

When you destroy a will, it should be completely destroyed so it can not be reassembled. You also need to make it clear that it has been revoked. 

If a will is destroyed accidentally or thought to have been destroyed accidentally, it can still be declared valid in court. Its validity would have to be proven though. 

You should make it clear that the destroyed will have been revoked by including a clause at the top of a new will stating that the new will revokes any previous wills or codicils. 

Setting up a Trust

If you want to leave money for people who you do not want to receive it all at once. For example, young children or people with disabilities. You may want to consider setting up a trust for them. 

The terms of the trust can be specified for your specific circumstances. You should get advice from a solicitor for this. Easy to make mistakes can cause complex legal problems to arise. 

Challenging a Will

Your will may be challenged if it is believed the will is invalid or people feel they have been inadequately provided for. 

Only your spouse, civil partner, children, or further descendants can challenge the will.

Beneficiaries who are not related to you and don’t have legal rights as defined by the law cannot challenge your will. 

If you want to challenge a will, talk to us today to find out if we can help you. 

Beneficiaries are also able to change the division of your estate through a formal process called a Deed of Family Arrangement or a Deed of Variation. All beneficiaries must agree to this. 

Where Do I Keep a Will?

It’s important to keep the original document of your will in a safe place. Here are some places to keep your will:

  • With a solicitor. This is safe, but you should ensure someone knows which solicitor’s office has the original will. 
  • At a bank. This is very safe, but they usually charge a fee. 
  • At home. This is not a very safe place to keep your will as it could get damaged. If you think it is safe at your house, it is ok to do this. 

Is a Handwritten Will Legal in Scotland?

Yes, a handwritten will is legal in Scotland. Holographic, attested and subscribed wills can be hand-written or in typescript. 

Power of Attorney

When you are writing your will, it is sometimes a good idea to grant power of attorney (POA) to your executors. This will give them the power to act for you. If you lose capacity, they will have legal authority or limited authority to make legal decisions on your behalf about your principal’s, property, finances, or medical care. 

This can be useful if you suffer an accident or illness that leads to serious mental or physical impairment or you are disabled. 

Living Will

A living will is a statement of intent that in the event the testator is injured badly or falls terminally ill, there should be no resuscitation or life-preserving medical intervention. 

This can not be enforced by law and is merely a statement of your wishes. 

Friends, family and medical staff do not have to refrain from acting because of it. 

Are you Making a Will in Scotland?

If you’re thinking of making a will in Scotland, contact us today! Our experienced solicitors are more than happy to talk to you about your situation and help you start writing your will. Get in touch now

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