Making a WIll in Scotland: Properly Probate Your Belongings

What is a Will

A will is a binding legal document that allows an individual to appoint executors to administer their estate and dispose of it to the beneficiaries chosen by them.

Do I need to make a Will?

It is important to have a Will in place as it ensures that your family and friends are protected in the event of your death and your estate is distributed in accordance with your wishes rather than the laws of intestacy.

What are the contents of a will?

  • The name of the Testator (the individual making the Will);
  • Executor details;
  • Beneficiary details;
  • How your estate should be distributed including any legacies of items or money;
  • Funeral arrangements if required; and
  • Guardian details if children under sixteen

Inheritance preferences: property/money/assets and possessions

By putting a Will in place you can choose who inherits individual items in your estate. You can leave a legacy of anything to someone in your Will. Examples can include your home, car, jewellery etc. The list is endless and even details of who should inherit your pet can be narrated within your Will.

Funeral arrangements

You can also narrate your funeral arrangements within your Will i.e. whether you wish to be cremated or buried, where you wish to be buried and who you wish to make the arrangements.

Executors of your estate

An Executor is the person or persons nominated by an individual in a Will as being responsible for administering their estate in accordance with their wishes. This should be someone you trust and if appointing more than one Executor you should ensure they get on with each other and are able to work together. You can appoint a Solicitor as your Executor if you feel that a family member may not be able to take on the role.

Executor responsibilities include:

  • Identifying the assets and debts of the estate
  • Preparing an application to Court for Grant of Confirmation (if required)
  • Ingathering the assets of the estate
  • Settling any debts or expenses including any Legal Rights claims
  • Calculating and paying Inheritance Tax if applicable
  • Transfer or sale of any heritable property
  • Distributing the estate according to the terms of the Will

How your children should be cared for

If you have children you can narrate who you would like to look after them should you die whilst they are under a certain age i.e. 16. You can also narrate where you would like them to live. Whilst this is not binding if there are ex-partners who may have parental rights, the terms of your Will may assist the Court in the event there is a challenge to the residence of any children after your death.

How to Register a Will in Scotland

A Will is only Registered in Scotland after you die. This is registered in the Books of Council and Session in Edinburgh. Once registered this becomes a public document and a copy can be obtained by anyone who may wish to see a copy. The Solicitor dealing with the winding up of the Estate will usually ask whether or not the Executor would wish the Will to be registered.

How much does a Will cost?

The cost of a Will varies, depending on its complexity and individual circumstances. If the Will is simple and straightforward, it can be as little as £150 plus VAT.

Can I prepare my own Will?

Yes, you can, however it is recommended that you use a professional to prepare your Will to make sure it reflects all of your wishes and that validity requirements are met.

Can I make a Will online?

Yes, you can however make sure that the online Will is reflecting your personal circumstances. Also be careful as most online template Wills are styled according to English Law and may not be valid in Scotland.

What is a simple Will?

A simple Will provides details of your executors and instructions on how your estate is to be distributed such as the whole estate going to your spouse or children.

Who can witness a will in Scotland?

Witnesses must meet all the criteria below in Scotland:

  • they must be over 16
  • they must have credible information of the testator’s identity (at the time of signing)
  • they cannot be blind
  • they cannot be illiterate (ie they must be able to write their own name)

However it is also advised that the witness should not be a beneficiary or related to a beneficiary of the estate.

Do I need a Will if I am married?

Yes, even though in most cases in terms of the law of intestacy your estate will go to your spouse. If you die intestate (without a Will) your spouse will require to apply to court to be appointed your executor in order to have legal authority to deal with your assets. This expensive and time consuming process can be avoided if you have a Will in place appointing your spouse as your executor.

Do I need a Will if I am co-habiting?

Yes, this is a situation where a will is absolute necessary as your co-habitant has no automatic right to your estate in the event of your death. If you die without a Will, your co-habitant will be required to make an application to the court for financial provision on death; however, again, this is an expensive and time consuming process and subject to strict time bar provisions, and there is no guarantee that the court will make an order in their favour.

Should I use a solicitor to help me prepare my Will?

It is essential to have a Will prepared by a professional to ensure it is properly drafted, signed and all requirements for its validity are met.

How long does it take to prepare a Will?

It doesn’t take long to have a Will drafted by a professional. In the most urgent cases, a Will can be drafted and signed on the same day.

Where to keep a will?

A Solicitor who prepares your Will normally will hold this safely for you free of charge. Some banks will also hold your Will if they have prepared this for you. However, if you do hold an original Will, whether your own or belonging to another, you should ensure this is kept safe. If the original Will is lost then this will cause difficulties when administering the estate.

How to make changes to your will?

It is important to review your Will when a major life event occurs, such as a marriage, a divorce, a separation, the birth of a child, the death of a relative or a change in your financial situation. These events may have an impact both on your wishes for the distribution of your estate and on the validity of your current Will. It is advisable to review your Will every 3-5 years to ensure there have been no changes to your personal circumstances or the Law.

How to change your Will

To change your Will, you cannot simply write changes on an existing Will. Such alterations are assumed to have been made after the Will was executed and so they do not form part of the original legally valid Will. The only way a Will can be legally changed is by:

  • making a codicil to the existing Will, or
  • making an entirely new Will.

Generally if the change you wish to make is quite small or simple you can use a codicil, and if the change is more significant or complex you should make a new Will. If you wish to make several changes, big or small, it is advisable to make a new Will.

You must sign a codicil and get it witnessed in the same way as witnessing a will. There’s no limit on how many codicils you can add to a will.

How to challenge a will

There are four grounds for contesting a will:

  • This argument says that the person who made the will wasn’t capable of understanding what they were doing – they were not able to understand the effects of the will, the amount of property they were giving away or why they were leaving this property to a particular person.
  • Undue influence. A will might be overturned if a relationship of trust and confidence has been abused. Usually, this means that someone who was in a position to exert a strong influence over the deceased has substantially benefited from the will. It needs to be shown that this sort of relationship existed, and for there to be evidence that pressure was put on the person who made the will. The pressure must have been sufficient to overpower the will or freedom of the deceased.
  • Facility and circumvention. You might be able to have a will overturned if you can show that the person who made the will was weak and that someone else took advantage of them as a result. This might have been due to ill-health or old age, and that as a result, they were unable to prevent the other person from putting unfair pressure on them.
  • You may be able to challenge a will if someone has benefited as a result of fraud.

The validity of a Will can be challenged by applying to either the Court of Session or the Sheriff Court. If the application is successful, the Will is ‘reduced’. This means that it is invalid and will be treated as if it never existed. It will be up to the court to decide if it is reasonable to reduce the Will.

However, it is extremely difficult and expensive to successfully challenge a Will. The court will not consider an application simply because a beneficiary, or someone who expected to be a beneficiary, thinks the Will is unfair. There must be clear evidence that supports the claim that it is not valid. You should instruct a solicitor to carry out full investigations before you consider applying to have a Will overturned.

Why should I choose Caritas?

Caritas Legal is a specialist law firm focusing on client care through delivering expert, down to earth advice with empathy, insight and professionalism. Call us today on 01383 431 101 to make or review your Will.

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