This information applies to Scotland
Why it is important to make a will
It is important for you to make a will whether or not you think you have many possessions, property or much money.
If you die without having written a will
If you die without making a will (this is known as dying intestate) there are certain rules called the rights of succession which will dictate how your money, property or possessions will be allocated when there is no written will or an oral will that had been witnessed. This may not be the way that you would have wished your money and possessions to be distributed.
If you would like more information about rights of succession you can look at a leaflet on the Scottish Government website or you can consult a solicitor or a Citizens Advice Bureau (CAB). You can also get a list of solicitors from your local CAB - where to get advice.
Couples who live together
Couples who are not married or who have not registered a civil partnership do not automatically inherit from each other when one partner dies unless there is a will. The death of one partner may create serious financial problems for the remaining partner because they have no automatic right to inherit. The surviving partner can go to court to try and get some of the deceased partner’s property and possessions.
If you have children, you should make a will to protect the children in case the main carers die. You can name a guardian in your will and leave instructions for how they should provide care for your children. You may want to consider setting up a trust.
Tax advice to reduce inheritance tax
It may be possible to reduce the amount of tax payable on what your family and friends inherit if advice is taken in advance when a will is made.
Changed personal circumstances
If your personal circumstances change, it is important that you make a will or change an existing will to ensure that your money and possessions are going to be distributed according to your wishes. The law on this is complicated and you may need to get legal advice.
From 1 November 2016, if you have left a gift in your will to your spouse or civil partner, this will fail if you have got divorced or dissolved your civil partnership. It is also the case that any appointment of your ex-spouse or ex-civil partner as an executor will 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.
You may have digital assets like an online shopping account with credit in it or social media accounts with detailed personal information and you need to make plans about what to do with them.
If you are in any doubt as to whether or not you should make a will, you should consult a solicitor or a Citizens Advice Bureau which can give you lists of solicitors - where to get advice.
You may 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 disabilities. 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.
Is it necessary to use a solicitor
It is generally advisable to use a solicitor, or to have a solicitor check a will you have drawn up, to make sure it will have the effect you want. This is because it is easy to make mistakes and if there are errors in the will this can cause complex problems after your death. Sorting out misunderstandings and disputes may result in considerable legal costs which will reduce the amount of money in the estate.
Some common mistakes in making your own will without legal supervision are:-
- not knowing about the formal requirements needed to make a will legally valid
- failing to take account of all the money and property available with the result that when you die some property has to be dealt with under the rules that apply when there is no will (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 alterations 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 which exist to enable dependents to claim from the estate if they believe they are not adequately provided for. These are called legal rights. These rules mean that the provisions in the will could be overturned if dependents exert these legal rights.
The Scottish Legal Complaints Commission (SLCC) has produced a helpful leaflet that explains more about wills and executries. You can find it on the SLCC website at www.scottishlegalcomplaints.org.uk .
When it is particularly advisable to use a solicitor
There are some circumstances when it is particularly advisable 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 dependent who is unable to care for themselves, for example a trust
- there are several family members who may 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 may be issues over who has the legal authority (jurisdiction) to make a decision about them. Your will may 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.
Other help with writing a will
If you are a member of a trade union, you may find that the union offers a free will-writing service. A union will often use its own solicitors to undertake this work.
Will-writing services are available in books and on the internet. However, self help will-writing books and will-writing firms are not regulated by the Law Society of Scotland so there are few safeguards if things go wrong.
How much does a solicitor cost
The charges for drawing up a will vary between solicitors and also depend on the complexity of the will. Before making a decision on who to use, it is always advisable to check with a few local solicitors to find out how much they charge. You may have access to legal advice through an addition to an insurance policy which might cover the costs of a solicitor preparing or checking a will. If you and your partner are both making wills a solicitor may be prepared to offer a discount if the terms of each will are similar. These are sometimes called ‘mirror wills’.
Check if a solicitor in your area is providing a free will-writing service when you make a donation to a charity of their choice. Visit www.willaid.org.uk and www.willreliefscotland.co.uk for lists of solicitors taking part in the schemes.
You may 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 give some thought to the major points which you want included in your will. You should consider such things as:-
- 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
- if you want to include digital assets in your will. Digital assets are anything that is stored online, for example, music and text; social media accounts; online photograph albums, online gaming identities. You will need to make a list of how to access all these accounts. You may 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 (see below)
- if you want to leave property to a transgender person you must seek advice as you may 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 may 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.
Who are executors
Executors are the people who will be responsible for carrying out your wishes and for sorting out your estate (property and possessions). They will have to collect together all the assets of the estate and deal with all the paperwork. They may 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.
They may have to sort out the problems that exist because there isn't enough money in the estate to pay all the debts due but anyone in this situation should seek further help.
Who to choose as executors
It is not necessary to appoint more than one executor although it is advisable to do so, for example, in case one of them dies.
It is common to appoint at least two people as executors but up to four executors can take on responsibility for administering the will after a death. This may be necessary if you have a lot of possessions and property and there is too much to do for one or even two executors.
You can appoint a social media executor if you think the person you have asked to be the executor does not have sufficient new technology skills to know what to do with any digital assets. You can appoint an odd number of executors if you think there could be disagreements. This could mean that deadlock in any decision making is avoided. People most commonly appointed as executors are:-
- relatives or friends
- solicitors or accountants
It is important to choose executors with considerable care as their job involves a great deal of work and responsibility. You should always approach someone first if you are thinking of appointing them as an executor in your will. If someone does not want to be named as an executor in your will they can refuse.
If you do not 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(s) can deal with the estate. If there are no surviving executors, the court can appoint one.
Requirements for a valid will
In order for a will to be valid, it must be:-
- made by a person who is 12 years old or over and
- made voluntarily and without pressure from any other person; and
- 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 may inherit; and
- made in writing; and
- signed by the person making the will on every page; and
- signed by the person in front of a witness.
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 and other documents should not be attached to it as 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 may charge an annual fee
- at home. If you keep a copy at home it is 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 these 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. From 1 November 2016, 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 may 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 give rise to expensive legal proceedings to establish which is the valid will.
The only way you can change a will is by making:-
- a codicil to the will; or
- a new will.
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 advisable 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 may want to challenge a will because:-
- they believe that the will is invalid; or
- they believe that 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. Your local Citizens Advice Bureau can give you a list of solicitors - where to get advice.
If a person who made a will commits suicide
If a person who made a will commits suicide, 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 may wish to consider granting power of attorney at the same time as writing a will. Many people make the mistake of assuming that executors will automatically be granted a power of attorney should an accident or illness lead 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.