Wills

Why it's important to make a will

It's important for you to make a will whether or not you think you have many belongings, property or much money.

Dying without a will is called dying intestate. If you don't have a will, rules called the rights of succession dictate how your money, property or belongings are distributed after your death. This may not be the way that you wanted your money and belongings to be distributed. 

Find out more about rights of succession on the Scottish government website.

If you're not married or in a civil partnership with your partner

If you're not married or in a civil partnership, your partner won't automatically inherit your money, unless you have a will. This applies even if you're living together or have been together for a long time.

They will have to go to court to try and get some of your property and belongings. 

Partners who are married or in a civil partnership should make wills too. Making a will means you can decide what to leave your partner, and other people, when you die. 

Children

If you have children, you can name a guardian for your children. You can also leave instructions on how they should be cared for. You might want to consider setting up a trust.

Tax advice to reduce inheritance tax

You might be able to reduce the amount of tax payable on what your family and friends inherit if you get inheritance tax advice when a will is made.

Digital assets

You might have digital assets, like an online shopping account with credit in it or social media accounts with personal information. You need to make plans about what to do with them.

If you're not sure whether to make a will, you should consult a solicitor or a Citizens Advice Bureau which can give you lists of solicitors - where to get advice.

If your circumstances change

If your personal circumstances change, it's important that you make a will or change your existing will to ensure that your money and possessions will be distributed according to your wishes. The law on this is complicated and you might need to get legal advice.

For example, you might need to change your will if you:

• have children

• get married or become civil partners 

• get divorced, dissolve your civil partnership or separate

• sell or gift your assets

• inherit property or money.

You should discuss how these changes affect your will and inheritance planning with a solicitor. 

Example

Separating from your partner

If you weren't married or in a civil partnership but you had made wills with your partner to make sure you could inherit from each other but now you have separated, you should change your will. If you don't change it your ex-partner can inherit if you die.

Example

Getting married or becoming civil partners

If you get married or enter into a civil partnership, there are rights of succession that apply even when neither of you has made a will. The surviving spouse or civil partner has what are called 'prior rights'. This means they're entitled to a certain amount of property and possessions of the person who has died. If you don't make a will, other family members might inherit less than you wanted them to because of the 'prior rights' rules.  

If you leave a gift in your will to your spouse or civil partner, this will fail if you are divorced or you dissolved your civil partnership. The appointment of your ex-spouse or ex-civil partner as an executor will also fail. If you do want to leave something to your ex-spouse or ex-civil partner or appoint them as an executor, then you will need to change your will to say so. 

Setting up a trust for beneficiaries

You might wish to leave money in trust for beneficiaries instead of having it all distributed immediately after you die. For example, you may wish to leave money for the benefit of young children or someone who cannot look after themselves, such as an adult with learning difficulties. If you want to set up a trust, you should consider using a solicitor to do this because mistakes are easy to make and legal difficulties can arise if this is not done properly. Some charitable organisations run a trustee service. Find out more about managing affairs for someone else.

Do you need to use a solicitor

It's best to use a solicitor to make sure your will is legally valid and there are clear instructions for your executors. If you write the will yourself, it's easy to make mistakes that can cause complex problems after your death. Sorting out misunderstandings and disputes in court can result in legal costs that reduce the amount of money in the estate.

Some common mistakes people make when making wills without legal supervision are:

• not knowing about the formal requirements needed to make a will legally valid

• not listing all the money and property available. This means that when you die some property has to be dealt with under the rules that apply when there is no will, the rules of intestacy

• failing to include directions about what happens if a beneficiary dies either before you or before the estate is settled. A will can be drafted to take account of what happens to the beneficiary’s share if this happens

• changing the will. If these changes are not signed and witnessed, they are invalid

• being unaware that marriage or civil partnership does not invalidate a previously made will or that divorce or dissolution of a civil partnership does invalidate most provisions in a will relating to the ex-spouse or ex-civil partner 

• being unaware of the rules that let dependants claim from the estate if they think they're entitled to more. These are called legal rights. These rules mean that the provisions in the will could be overturned if dependants exert these legal rights.

There is a leaflet explaining more about wills and executries on the Scottish Legal Complaints Commission (SLCC) website. 

Will-writing services are available in books and online. However, these are not regulated by the Law Society of Scotland so there are few safeguards if things go wrong.

When to use a solicitor

There are some circumstances when it is best to use a solicitor. These are when:

• you share ownership of a property with someone who is not your spouse or civil partner

• you wish to make provision for a dependant who is unable to care for themselves, for example a trust 

• there are several family members who might make a claim on the will, for example, a second wife or children from a first marriage

• your permanent home is not in the United Kingdom

• you are not a British citizen

• you are resident here but you own or part-own overseas property

• you are involved in a business

• you want your possessions to be distributed according to another legal system, for example, Islamic law

• you have online possessions, digital assets, that have financial or personal value. There might be issues over who has the legal authority, called jurisdiction, to make a decision about them. Your will might eventually be held in official records that anyone can ask to see, so you need to consider if you need to keep any information separately for confidentiality.

How much does a will cost

Solicitors can set their own charges for drawing up a will. If your will is complex it might be more expensive.

Check with a few local solicitors to find out how much they charge. The fees might be listed on their website.

Some solicitors offer discounts for multiple or 'mirror' wills. Mirror wills have similar terms.

Check if you can get a free will

You should check if you can get a free or discounted will through: 

• an insurance policy 

• an employer 

• a trade union. 

Many trade unions offer a free will writing service to their members.

Free Wills Months

Some solicitors waive their usual fees for drawing up wills at certain times of the year when you donate to charity or leave a donation in your will.

Free Wills Month is a charity scheme that runs every March and October. You can read more on the Free Wills Month website.

Will Aid runs every November. You can read more on the Will Aid website.

Free Wills Network

More than 150 charities are signed up to the National Free Wills Network. They offer free simple wills written or updated by a solicitor. Most charities offer this service in the hope you will leave a donation in your will.

Free will services are often for charity members and those over 55, but each charity’s offer is different.

For example, if you’re over 50 and living in Scotland you can use Age Scotland’s free will service. 

Anyone over 18 can use Cancer Research UK’s free will service.    

For a full list of charities, visit the National Free Wills Network website.

Legal aid

You might be able to get help with the legal costs of making a will if a solicitor considers that you need advice on Scots law before you can make the type of will you need and you are financially eligible.

What should be included in a will

To save time and reduce costs when going to a solicitor, you should think about what you want included in your will.

You should think about:

• how much money and what property and possessions you have. For example, property, savings, occupational and personal pensions, insurance policies, bank and building society accounts, shares

• digital assets - anything that is stored online. For example, music, text, social media accounts, photographs, and online gaming accounts. You'll need to make a list of how to access all these accounts. You might need specialist legal help because there could be issues about your online account being American, for example, and not covered under Scottish executry law

• who you want to benefit from your will. You should make a list of all the people to whom you wish to leave money or possessions. These people are known as beneficiaries. You also need to consider whether you wish to leave any money to charity

• who should look after any children under 16 and what provisions need to be made for them and any older children

• who is going to sort out the estate and carry out your wishes as set out in the will. These people are known as the executors 

• if you want to leave property to a transgender person you must seek advice as you might have to refer to the person in their acquired gender, not their birth gender.

Extra care needs to be taken when you are making a will and including instructions about property such as your house or flat. In some cases there might be a clause in the title deeds called a 'survivorship destination' clause. These clauses can override what it says about the property in a will. A solicitor can give advice about the impact of these clauses.

Choosing executors

Executors are the people responsible for carrying out your wishes and for sorting out your estate after your death. Your estate is your property and possessions.

They have to collect together all the assets of the estate and deal with all the paperwork. They might have to pay all the debts, taxes, funeral and administration costs out of money in the estate. They will need to pay out the financial assets and other possessions and transfer any property to beneficiaries.

There might not be enough money in the estate to pay all the debts, anyone in this situation should seek further help.

Who to choose as executors

You don't have to appoint more than 1 executor but it's advisable to do so, for example, in case 1 of them dies.

It's common to appoint at least 2 people as executors but there can be up to 4 executors. This might be necessary if you have a lot of possessions and property and there is too much to do for 1 or 2 executors.

You can appoint a social media executor if you think the person you have asked to be the executor won't know what to do with any digital assets. You can appoint an odd number of executors if you think there could be disagreements. This means that a deadlock in any decision making is avoided. 

People most commonly appointed as executors are:

• relatives or friends

• solicitors or accountants

• banks.

It's important to think carefully when you choose executors because their job involves a lot of work and responsibility. You should always ask someone first if you're thinking of appointing them as an executor in your will. If they don't want to be named as an executor in your will, they can refuse.

If you don't appoint any executors in your will the court will have to do this after your death. Once the court appoints an executor that person cannot resign or take on other executors without going back to the court for permission.

If an executor dies, any other surviving executor can deal with the estate. If there are no surviving executors, the court can appoint one.

Requirements for a valid will

For a will to be valid, it must be all of the following:

• made by a person who is 12 years old or over 

• made voluntarily and without pressure from any other person

• made by a person who is of sound mind. This means the person must be fully aware of the nature of the document being written or signed and aware of the property and the identity of the people who might inherit

• made in writing

• signed by the person making the will on every page

• signed by the person in front of a witness.

The witness should see you sign the document or hear you acknowledge your signature. The witness should sign their name on the last page of the will and should write 'witness' and the date. They should also add their name and address. A witness should not be a beneficiary or an executor appointed by the will unless there's no alternative.

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

Where to keep a will

Once a will has been made the original document should be kept in a safe place. Other documents should not be attached to it because this can make it more difficult to find. There are a number of places where you can keep a will:

• with a solicitor. Make sure that someone knows which solicitor’s office holds the original will

• at a bank although it might charge an annual fee

• at home. If you keep a copy at home it's a good idea to put it in an envelope that is clearly labelled. It is generally not a good idea to keep an original will at home as it can get damaged.

Changes of circumstance

When a will has been made, it is important to keep it up to date to take account of changes in circumstances. It is advisable for you to reconsider the contents of a will regularly to make sure that it still reflects your wishes and what you own. The most common changes of circumstances which affect who you want to leave your property to are:

• getting married, remarried or registering a civil partnership

• getting divorced, dissolving a civil partnership or separating

• the birth or adoption of children, if you wish to add them as beneficiaries in a will

• death of a beneficiary

• new assets.

If you do not change your will after a marriage or registration of a civil partnership the existing will is still valid. Getting divorced or ending a civil partnership does affect a will. If you have left a gift in your will to your spouse or your civil partner, it will not take effect if you get divorced or end your civil partnership. 

How to change a will

You might want to change your will because there has been a change of circumstances. You must not do this by amending the original will yourself after it has been signed and witnessed. Any obvious alterations to the will are assumed to have been made at a later date, do not form part of the original legally valid will, and can mean expensive legal proceedings to find out which is the valid will.

The only way you can change a will is by making:

• a codicil to the will

• a new will.

Codicils

A codicil is a supplement to a will which makes some alterations but leaves the rest of it intact. This might be done, for example, to increase a cash legacy, change an executor or guardian named in a will, or to add beneficiaries.

A codicil must be signed by the person who made the will and be witnessed in the same way as the original will was witnessed. However, the witnesses do not have to be the same as for the original will.

There is no limit to how many codicils can be added to a will but they are only suitable for very straightforward changes. If a complicated change is involved, for example, because a main beneficiary has died, it is usually best to make a new will.

Making a new will

If you wish to make major changes to a will, it is advisable to make a new one. The new will should begin with a clause stating that it revokes all previous wills and codicils. The old will should be destroyed. Revoking a will means that the will is no longer legally valid.

Destroying a will

If you want to destroy a will, you must burn it, tear it up or otherwise destroy it with the clear intention that it is revoked. There is a risk that if a copy subsequently reappears, or bits of the will are reassembled, it might be thought that the destruction was accidental. You must destroy the will yourself or it must be destroyed in your presence.

If a will is destroyed accidentally, it is not revoked and can still be declared valid if there is a copy available. Its validity would have to be proven in court.

Although a will can be revoked by destruction, it is always advisable that a new will should contain a clause revoking all previous wills and codicils. Revoking a will means that the will is no longer legally valid.

Challenging a will

A person might want to challenge a will because they believe that:

• the will is invalid

• they have not been adequately provided for in the will. Only a spouse, civil partner, children or their descendants can challenge the distribution of assets in a will and claim their legal rights instead. A beneficiary who is not a relative and does not have legal rights defined by law cannot challenge the will.

If you want to challenge a will, you should seek legal advice as soon as possible after being told of the content of the will. Search for a solicitor on the Law Society of Scotland website, or your local Citizens Advice Bureau can give you a list of solicitors. Check where to get advice.

In some cases, you might be able to get help with legal costs.

If a person who made a will takes their own life

If a person who made a will takes their own life, the will is still valid.

Changing distribution of property under a will

It is possible for beneficiaries of a will to change the division of the deceased’s estate as it is laid out in the will. This is done by a formal process called either a Deed of Family Arrangement or a Deed of Variation .

All the beneficiaries must agree to this. You must seek legal advice about doing this.

Power of attorney

You might wish to grant power of attorney at the same time as writing a will. Executors are not automatically granted a power of attorney if an accident or illness leads to a serious and permanent mental or physical impairment. A power of attorney must be drawn up separately and it is usually advisable for a solicitor to do this for you. Find out more about powers of attorney.