If you are considering making a will, this guide can help. A properly drafted will is the only way to ensure that your assets are distributed how you wish after you pass away. This guide will answer some of the most commonly asked questions about making a will, including:
- Why should I make a will?
- What are the formal requirements for making a will?
- Do I need a lawyer to make a will in Scotland?
- Do I need to review my will?
- How do I make changes to my will?
- What happens if I die without leaving a will?
Why should I make a will?
In Scotland, everyone aged 12 and over can make a will, and there are many practical reasons for doing so. A properly drafted will allows you to:
- Have your property and assets distributed as you wish after you pass away
- Appoint executors who you trust to administer your estate
- Make provision for funeral arrangements, care of pets or other ancillary matters
- Take advantage of effective tax planning
- Provide for unmarried partners and their children
- Prevent disputes between loved ones over your estate after you pass away
This list is not exhaustive, and the legal professional you work with to draft your will can advise you as to how you can prepare for the future using a will. If anything, having a will and going through the process of making one can provide you and your family with the comfort and assurance that your affairs are in order.
What are the legal requirements for making a will in Scotland?
The law in Scotland requires that to make a will, you must be at least 12 years of age and have legal capacity. Wills must also be made in writing in accordance with the Requirements of Writing (Scotland) Act 1995. This includes a signature on each page of the will in the presence of at least one witness. A verbal agreement cannot constitute a will, and any promise of property to be left in a will must be made clear in the document.
Do I need a lawyer to make a will?
There is no legal requirement that says you must have a lawyer draft your will. However, drafting a will yourself (commonly referred to as a DIY will) comes with serious risks. Where a will is not prepared by a professional, you run the chance of the document not meeting the criteria that makes it legally valid. Common mistakes include failing to sign on each page in the presence of a witness, not having the will witnessed at all, and failing to recognise the laws around what can be included in a will.
Drafting a will can be challenging, meaning your wishes may not be accurately reflected in the wording of your will, or you miss out on some of the benefits such as inheritance tax planning. Creating a DIY will can leave you exposed to several legal mishaps, which is why we always advise seeking the advice of a professional.
What can be included in your will?
There are many things to consider when making a will in Scotland. Firstly, you must take stock of the money, property and possessions you have. Your wills advisor can guide you through this by providing prompts for the assets you may have, including heritable property, bank accounts, pensions, savings, investments, shares, business assets and personal possessions.
After you have a clear idea of your estate, you must then consider who you wish to benefit from your estate. These individuals or organisations are known as your ‘beneficiaries’. You must also set out who you want to act as the executor or executors of your estate. These people will be responsible for ingathering the estate and distributing the assets in line with your will. It is sensible to appoint more than one executor as this can be a significant role depending on the size of your estate.
If you have young children, you may wish to include your wishes regarding who you would like to look after them in the event of your death. You can also include instructions for your funeral and how you wish your remains to be dealt with, as well as instructions for sentimental or charitable gifts.
Can I make changes to my will?
Yes, it is possible to make changes to your will at a later date, and in fact, we would recommend that you review and update your will regularly. To change your will, you can create additional documents called codicils. If you experience any of the following changes in your life, it is especially important to update your will:
- You get married, remarried or register a civil partnership
- You get a divorce or separate from your partner
- You have a child or adopt a child
- One of your beneficiaries passes away
- You gain new assets that you wish to be left to certain people in the event of your death, such as property or a business
What happens if you die without a will in Scotland?
If you pass away without making a will in Scotland, your assets will be distributed in line with the rules of intestacy. Generally speaking, your spouse or civil partner is entitled to one half of your moveable estate if you have no children, or one-third of your estate when you have left children behind. Children are entitled to one-third of your moveable estate if you have a spouse or civil partner, or one-half between them should you not have a partner at the time of your death.
The rules of intestacy follow a rigid order of who benefits from your estate, which can ultimately lead to complications and tension among families at what is already a difficult time. To avoid your estate being distributed in a way that does not reflect your wishes, contact our qualified lawyers today.