Making a Will in Scotland

Making a Will in Scotland

For people in England and Wales, the process of making a Will is almost exactly the same. However, the process is slightly different north of the border in Scotland. Much of this is simply down to different terminology, although there are some variations in the law that can affect how a Will is written.

The importance of making a Will

It’s important to have a Will so that everything you’ve worked hard for is passed on to those you care about most. Making a Will means that your assets get distributed as you wish, rather than ending up with the state. 

If you still need persuading on why a Will is important, see our list of ‘10 reasons to make a Will’.

Across Scotland, it’s important to understand that when you die without a Will in place, your assets are distributed based on a rule called the ‘rights of succession’. This means your belongings and assets are distributed in a way that isn’t based on your wishes. 

If you’re married

Under Scottish law, if you're married, your spouse is entitled to a part of your estate, irrespective of your Will. This may result in your spouse not fully being able to claim the entirety of your estate.

If you're not married or are in a civil partnership

If you pass away without being married to your partner or you were in a civil partnership, this leaves uncertainty for your partner as they will not automatically be entitled to your estate. The process in these circumstances requires your partner going through court proceedings to gain access to your estate. If children are involved, this could cause further complications for your spouse.

If you have children

Under Scottish law, your children are automatically entitled to part of your estate, irrespective of if there is a Will in place or not.

The significance of a Will should certainly not be underestimated, especially as it ensures those closest to you are cared for after you’ve gone. 

Who can help write my Will?

If you’re interested in getting help to write your Will, we recommend getting professional help from either a solicitor or qualified Will writer. They will ensure your Will is legally valid, making sure everything is accurate and that the instructions in your Will are clear. Find out more about the ‘differences between solicitors and Will writers’.

Can I create my own Will myself?

If you decide to go down the route of creating your Will yourself, it’s important to understand mistakes can be made which can affect the credibility and legality of your Will. Common mistakes people make include:

• Not correctly witnessing the Will
• Leaving out assets
• Being too precise and specific with detail
• Not appointing guardians
• Excluding step-children
• Making changes to a Will after it has been signed

The list goes on. We always recommend getting professional legal advice when it comes to writing your WIll, for peace of mind. However, if you decide to write your own Will, please consider the mistakes listed above and attempt to get your WIll checked by a legal professional if possible. 

What information should be included in my Will?

It’s useful to know what information you need in your Will, so you can plan in advance and gather the information you need to provide to a solicitor or Will writer. 

The type of information that is required in your Will includes:

• Your basic personal details
• Your executor
• Your beneficiaries
• Your appointed guardians for your children
• Funeral wishes
• The inclusion of money and assets

Confused by all the legal jargon? Then visit our A-Z of Wills which helps explain what legal terms like executor and beneficiaries are. 

How much does it cost to write a Will in Scotland? 

The cost of writing a Will in Scotland using professional services is similar to the costs across England and Wales. Depending on the Will required and the professional you decide to work with, costs will vary. The average costs of making a Will in Scotland are:

Single Will: Roughly £150

Mirror Will: Roughly £250

Living Will: £100 - £500

Visit our guide to find out more about the ‘cost of making a will’.

The main differences of writing a Will in Scotland

First off, the main difference between Wills in Scotland is that your spouse and children are entitled to part of your estate irrespective of the terms of the Will. In England, people have what is known as 'testamentary freedom', which means that you are entitled to leave your estate however you wish. However, this freedom does not apply to Scotland.

As a result of this, unlike in England or Wales, you cannot cut out a direct family member from your Will, whatever your rationale. The only way that a spouse or child could be left without inheritance is if all the assets are tied up in property or land, as this entitlement only applies to 'movable assets'.

This law can also apply to movable assets that are held in a Scottish home, with these assets termed as being “domiciled” in Scotland. Therefore, even if you live in England, any assets that are kept in Scotland fall under these laws, and would therefore need to be distributed among direct family unless an alternative arrangement is stipulated in the Will. You should also be aware that remarrying does not invalidate a Will in Scotland.

The only circumstance in which Scottish law wouldn’t apply to your Will is if it was legally witnessed and signed in England. The only exception to this would be if any stipulations in the Will contravened Scottish law. If you need any subsequent changes to your Will, it would need to be rewritten in accordance with Scottish regulations. 

In certain cases, you can write a Scottish and English Will that are both applicable if you wish to deal with assets on both sides of the border separately, but it’s strongly recommended that you speak with a solicitor before going down this route. 

Another difference is that you don’t need to be 18 to write a Will in Scotland. The legal age to write a Will in Scotland is 12, and you must also be of sound mind. The person writing the Will must also have full knowledge of all the assets which need to be mentioned in the Will. 

Asset valuation

There is a slight difference in Scotland when it comes to valuing shared assets. In England and Wales, an individual’s share of an asset is the half the valuation minus 10%. In Scotland, £4,000 is taken from the shared asset’s value, and it is then divided by two. For example, if someone in Scotland owned a shared property valued at £250,000, the valuation would be:

£250,000 – £4,000 = £246,000

Then

£246,000 ÷ 2 = £123,000

Confirmation vs probate

Confirmation is the process by which you confirm that someone’s Will is valid. The process is largely similar to probate – used in England and Wales – but there are some legal differences. Firstly, confirmation is granted by a commissary department of the local sheriff court rather than the high court, as is the case in England and Wales. 

The laws around executors are also slightly different in Scotland. An executor need only be 16 years old in Scotland, unlike in England and Wales where they need to be 18. There is also no maximum number of executors in Scotland. 

In summary

By and large, the Will writing process is the same in Scotland as it is in England and Wales. However, a few key differences could affect the way your estate is distributed, so check over the finer details with a solicitor if you want to ensure your wishes are carried out.