Preparing Your Will in Scotland

A will sets out who receives your money, property and belongings, and who will deal with your affairs. Scotland's rules differ from those in England and Wales, so it helps to understand them before you start.

How Scottish wills differ

The main differences are:

• You can make a will from the age of 12 if you have the mental capacity to do so. In England and Wales the age is normally 18.
• One witness is normally used to make a will self-proving, rather than the two witnesses required for an ordinary will in England and Wales.
• Marriage or civil partnership does not cancel an existing will. In England and Wales it generally does, unless the will was made with that particular marriage or partnership in mind.
• Your spouse, civil partner and children have "legal rights" to part of your net moveable estate.
• Where formal authority is needed to administer the estate, executors apply for "confirmation" rather than probate.

Moving to Scotland does not automatically invalidate a will made in England or Wales, but Scottish succession rules may affect how your estate is shared. Have it reviewed, particularly if you own property in more than one country.

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Signing and witnessing your will

Your will must be in writing. Sign it at the end and on each sheet in front of one witness, or tell the witness that the signature is yours. The witness then signs as part of the same continuous process, and their name and address are added to the will. Together these steps make the will self-proving, so it normally needs no further evidence that it was properly signed. It can still be challenged on other grounds, such as your capacity at the time.

Your witness must be at least 16 and have the mental capacity to act. They need to know who you are, though credible information about your identity is enough. A gift to a witness is not automatically cancelled in Scotland, but an independent witness avoids questions later.

An unwitnessed will, whether handwritten or typed, may still be valid. Your executors may need extra evidence that you signed it, which can cause delay and cost.

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Legal rights: claims by spouses, civil partners and children

Your will cannot simply override legal rights. These apply to your net moveable estate, such as savings, investments, vehicles and belongings, but not to land or buildings.

• A spouse or civil partner can claim a third if you leave children or other descendants, or a half if you do not.
• Children together can claim a third if there is a surviving spouse or civil partner, or a half if there is not. The children of a child who has died can claim in their parent's place.

Adopted children are included, but stepchildren and unmarried partners have no legal rights. Someone left a benefit in the will normally has to choose between that benefit and their legal rights, unless the will provides otherwise. They can also decide not to claim.

Without a valid will, the rules of intestacy decide who inherits, and the result may not match your wishes.

Getting help and keeping it up to date

Unless your affairs are very simple, a solicitor can explain how legal rights may affect your intended gifts and draft the will accordingly. Think about executors and substitutes, and about guardians or trusts if you have young children. Jointly owned property with a survivorship destination, and some pensions and life policies, may pass outside the will. The Law Society of Scotland's Find a Solicitor tool lists firms near you.

Keep the signed original somewhere safe, such as with your solicitor, rather than relying on a scan, and do not write changes on it after signing. Review it after marriage, separation, divorce, the birth of a child or buying property. After divorce or dissolution, a former partner is generally treated as having died before you, so gifts to them and their appointment as executor fail unless the will says otherwise. Separation alone does not have this effect.

mygov.scot has guidance on making a will and on legal rights, and the Scottish Courts and Tribunals Service explains how executors apply for confirmation.

The Next Step

Now that you have read through the advice above, you might want to put it into practice. Our Will Terminology Explainer lets you understand will and probate terminology in plain English. Try it now →