Understanding Wills in Scotland
A will is a legal document which specifies where and to whom you wish your assets (known as your ‘estate’) to be distributed in the event of your death.
For most people, making a will should not be complicated or time consuming. Despite this, a recent survey revealed that approximately 58% of people in Scotland do not have a will in place. Creating a will is important because it ensures that your wishes regarding the distribution of your assets are taken care of.
If you die without a will in Scotland, this is called dying intestate. Dying intestate means that your estate is distributed in accordance with the laws of succession. This could lead to your estate being distributed in a way you wouldn’t intend.
Having a will in place as early on in life as possible provides clarity and simplifies the process of dealing with your estate. It also allows you to have full control and certainty over what happens to your assets upon your death.
Requirements for a Valid Will in Scotland
Under Scots law, for a will to be valid it must meet the following criteria:
- Made in writing;
- Put in place by a person over 12 years old;
- Made by a person who is of sound mind;
- Signed by the person making the will at the bottom of every page (the “testator”); and
- The testator’s signature being witnessed by one independent witness. The witness should sign the last page of the will and add the date and place of signing, together with their name and address.
If these requirements are met, then the will is legally valid. If all of the requirements are met except for the witness, it may be possible to apply to the court to have the will recognised as valid. However, this can be costly and time consuming, so it is better to avoid this.
Should I Write My Own Will?
Writing your own will can be cost-effective, as you will not require to pay solicitor fees to draft the document. It may be especially beneficial for individuals who have straightforward estates and wishes.
However, if you choose to write your own will, you put yourself at significant risk of making mistakes. Some of the main disadvantages to writing your own will are as follows: –
- Legal knowledge: Writing a legally valid will requires a sound understanding of the applicable laws in your jurisdiction. Failure to follow legal requirements can result in the will being declared invalid or contested upon your passing. If your will is not executed correctly, this may make the Confirmation process more stressful, costly and time consuming for your loved ones.
- Complex circumstances: If your estate is complex, involving multiple beneficiaries, significant assets or a blended family, writing your own will may not adequately address all of these circumstances appropriately. It is always advisable to take advice from a solicitor in such circumstances.
- Inheritance tax (IHT): An experienced solicitor can provide you with estate planning advice, including what the inheritance tax threshold is, the exemptions and reliefs that may be available to you and can help to reduce any tax liability that may be due.
Whilst writing your own will may be an attractive option to cut costs, it is important to be aware of the potential pitfalls. Consulting with a solicitor can help ensure that your wishes are properly documented and legally valid. This will reduce the likelihood of disputes or complications after your passing.
Steps to Write Your Own Will
If you choose to write your own will, here are some general guidelines to follow:
- Executor: Designate an executor who will be responsible for carrying out the instructions in your will.
- Beneficiaries: Clearly identify the beneficiaries who will inherit your assets. Be specific about what you are leaving to each beneficiary, whether it’s a sum of money, specific items, or a share of your remaining estate.
- Distribution of assets: Make sure your will deals with all of your assets. Your assets remaining after debts, expenses and specific legacies are known as the “residue” of your estate. You should ensure that the residue is fully distributed.
- Guardianship (if applicable): If you have minor children, you can use your will to appoint a guardian for them in the event that both parents pass away. Make sure to discuss this with the intended guardian beforehand.
- Funeral: If you have specific funeral instructions, your will is a good place to document them.
- Clear language: Ambiguities or unclear wording in your will can lead to disputes among your beneficiaries. Be precise with your language to avoid misunderstandings.
- Signing your will: You should ensure that your will is signed by you at the bottom of each page before an independent witness. The witness should sign the will on the last page, add the date and place of signing plus their own details.
- Storing your will: Your signed will must be stored safely as the original version will be required after your death.
Given the complexity and potential legal implications of creating a will, it’s advisable to consult a solicitor. They will help you draft a will that accurately reflects your wishes and complies with the legal requirements in your jurisdiction.
When to Seek Professional Help
Consulting a solicitor or will writing professional is advisable in various situations to ensure that your legal documents and affairs are properly handled and in accordance with the law.
Seeking advice is particularly important in any of the following situations: –
- International assets: If you own property or assets in different countries, the legal and tax implications can be complex. A solicitor with expertise in international law can help you navigate these challenges.
- High-value estates: If you have a substantial amount of assets or property, you should consult a professional to optimize tax implications and ensure your assets are distributed as per your wishes.
- Complex family arrangements: If you have a complex family structure, such as blended families, stepchildren, or dependents with special needs, a solicitor can help you navigate the complexities of estate planning to ensure everyone is properly provided for.
- Business ownership: If you’re a business owner, a solicitor can help you incorporate your business into your estate plan.
- Trusts and estate planning: If you wish to make provision for a dependant who is unable to care for themselves.
- Unmarried couples: There is no provision under Scottish intestacy laws for couples who are living together outside of marriage.
Consulting a solicitor can provide you with the expertise to navigate these situations effectively. Even if your situation seems straightforward, having a legal expert review your documents can prevent unintended consequences or oversights that could lead to legal complications down the line.
Reviewing and Updating Your Will
Regularly reviewing your will is important to ensure that it accurately reflects your current wishes, circumstances, and any changes in the law
In particular, events which may require a will to be changed can include: –
- Changes in personal circumstances: Life is dynamic, and your personal circumstances can change over time. Events like marriage, divorce, birth of children or grandchildren, death of beneficiaries, and changes in relationships can impact how you want your assets to be distributed.
- Changes in beneficiaries: If you want to add or remove beneficiaries from your will, or if circumstances change that affect how you want to distribute your assets among beneficiaries.
- Tax and legal changes: A change in the law relating to inheritance tax and capital gains tax in the UK.
- Asset and financial changes: Changes in your financial situation, such as a windfall, by way of inheritance or otherwise, acquiring new assets, selling properties, or changes in investments, can affect the overall distribution of your estate.
Regularly reviewing your will is a quick process. It provides peace of mind that your affairs are in order and your loved ones will be taken care of according to your wishes.
Although it is possible to write your own will in Scotland, it is not advisable. There is wide scope for mistakes to be made which can potentially significantly complicate matters after your death. Consulting one of our experienced Personal Law solicitors at Gibson Kerr will provide you with clarity and peace of mind knowing that your affairs are in order after your death.
If you would like more information on drafting a will, please get in touch with our personal law department
The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland.