Wills

What is a will

A will sets out what happens to someone’s money, property and possessions after they die.

It can also help clarify what happens after they die, such as making funeral requests clear or naming who they want to deal with their affairs.

To be legally valid, a will must be:

• in writing

• made by someone who is 12 years old or over

• made by someone of sound mind voluntarily and without pressure from anyone else

• signed by the person making the will on every page in front of a witness and by the witness on the last page.

A will is valid as soon as it is signed and witnessed.

Why it's important to make a will

It's important for you to make a will even if you don't 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 set out how your money, property or belongings are distributed after your death. This might not be the way that you want them 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. 

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.

Read more about inheritance tax on mygov.scot.

Do you need to use a solicitor

It's best to use a solicitor to make a will.

If you write the will yourself, it's easy to make mistakes that can cause 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.

Read more about using a solicitor.

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 their money and property. Property that isn't listed will be dealt with under the rules that apply when there is no will, the rules of intestacy

• not including 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

• not following the right process to change the will. Changes that are not signed and witnessed 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 legal rights of a spouse, civil partner or children. These rights mean they could claim more from the estate than they've been left in the will.

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.

How much does it cost to make a will

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 Scottish solicitors offer online will writing services. You can draft a will online which is then checked by a solicitor. This might be cheaper than going to see a solicitor.

A solicitor might offer discounts for multiple or 'mirror' wills. Miror wills have similar terms. For example, a solicitor might create mirror wills for couples where both partners are having a will drawn up at the same time and where the terms of the two wills are very similar.

Check if you can get a free will

You might be able to get a free will from a charity or other organisation.

It's good to also 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

A number of charities are part of the National Free Wills Network. They offer free 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.

Not all charities are part of the Free Wills Network. You might be a supporter of a charity that’s not part of the network but still offers a wills service. You should check with them to see if this is something that they do.

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

Legal aid

Legal aid isn’t usually available for making a will. In some circumstances you might qualify for an advice and assistance contribution. You should check with the Scottish Legal Aid Board first. You can check if you're eligible for legal aid on the Scottish Legal Aid Board website. 

What you should put 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 before you meet them.

You should think about:

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

• assets and money – for example, property, savings, pensions, insurance policies, bank and building society accounts and shares 

• digital assets – anything that is stored online. This might include social media accounts or photos. You’ll need to make a list of how to access these accounts and might need specialist legal help 

• who you want to benefit from your will - these people are known as beneficiaries. You also need to consider if you want to leave money to charity 

• who should look after your children.

Extra care needs to be taken when you are making a will and including instructions about property such as your house or flat.

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 an executor or 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.

Executors must collect all the assets of the estate, distribute them to beneficiaries 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.

Who to choose as executors

The role of executor involves a lot of work and responsibility. You should always approach anyone you’re thinking of nominating to see if they will agree to take on the role

It's common to appoint at least 2 people as executors but you don't need to. You might want to appoint more if you have a lot of possessions and there is too much to do.

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.

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.

Leaving other information in a will

In addition to instructions about how you want your estate to be distributed, you might want to set out how you want other practical arrangements to be carried out after your death.

This information can go in a will, but if you want to go into detail, it might be better to put it in a simple letter that is kept with the will.

For example, it can be useful to leave guidance about the type of funeral you want.

A letter is better because if you change your mind about what you want to happen, you can write a new letter but you don’t need a new will.

Where to keep a will

It’s important to keep a will safe as the executors will need it to deal with the estate.

If a solicitor helped you with the will, they will usually keep the original and give you a copy. It’s not a good idea to keep the original yourself at home as there’s a risk it might get lost or damaged.

If you keep a copy at home, it’s a good idea to keep it in an envelope that’s clearly labelled.

It is possible to store a will with the Registers of Scotland in the Register of Deeds for a fee. Read more about storing documents on the Registers of Scotland website.

If a will can’t be found

If someone who has died left a will but it can’t be found, the executor will need to take steps to find it.

To help find it, it might be useful for them to speak to:

• local solicitors, banks or building societies that the person used

• close friends or relatives

• financial advisers or accountants

• pension and superannuation holders.

The executor might want to advertise in local papers or legal journals to locate a solicitor who might have a copy of the will.

If the will is lost but a copy has been kept, for example, by a solicitor or relative, it is possible to have the copy confirmed as a valid will in court. A solicitor's help will be needed.

If after searching all known sources the will can’t be found, the estate will be dealt with as if there is no will.

Changing a will

You can change your will at any time, for any reason.

You might want to change your will because there has been a change of circumstances, for example if:

• you got married or registered a civil partnership

• you got divorced or dissolved a civil partnership

• there's been a birth or death which changes how you want your assets distributed

• you acquired new possessions that you want to include.

If you don’t change your will after you get married or register a civil partnership, your existing will is still valid. If you get divorced or end a civil partnership, anything you left to your former spouse or civil partner will not be valid.

You must not amend the original will yourself. It's assumed that any obvious alterations to the will have been made at a later date and do not form part of the original legally valid will. This can mean expensive legal proceedings to find out which is the valid will.

A will can only be changed by adding a codicil or by making a new will.

Codicils

A codicil is a separate legal document that can change some parts of the will but keep the rest as it is.

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. It does not need to be the same witness.

There's no limit to how many codicils can be added to a will. You should only use them for `very straightforward changes. If a complicated change is needed, it's usually better to make a new will.

Making a new will

If you want to make major changes to a will, it's best to make a new one. The old will should be destroyed.

The new will should begin with a clause that says all previous wills and codicils are revoked. 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.

The actual destruction must be done by the person who made it, or by someone else on their instructions.

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 will and claim their legal rights instead.

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. Read more about using a solicitor.

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.

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. Without a solicitor, it’s easy to make mistakes and there might be legal difficulties. Read more about using a solicitor.

Some charitable organisations run a trustee service.

Power of attorney

You might want to grant power of attorney at the same time as writing a will.

Executors are not automatically granted a power of attorney, for example, 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.