Home How To Create A Legally Binding Will In Scotland

How To Create A Legally Binding Will In Scotland

October 17, 2024 Estate Planning

Creating a legally binding will in Scotland involves several key steps to ensure your wishes regarding the distribution of your estate are honoured after your death. A few factors are involved in drafting a will, including taking inventory of your assets, appointing an executor, and deciding on minor children’s guardianship – among others.

Whether creating your first will or updating an existing one, consult with our qualified will solicitors in Scotland to ensure all legalities are in place. Jones Whyte’s dedicated team provides exceptional legal services, ensuring compliance and peace of mind.

Contents

How to create a will: A step-by-step guide
Requirements for a valid will in Scotland
Why is a will important?
The benefits of using Jones Whyte’s professional team
Key takeaways
Frequently asked questions

How To Create A Will: A Step-By-Step Guide

Here’s a step-by-step on how to create a legally binding will in Scotland:

1. Take inventory of your assets

Make a detailed list of all your assets, including properties, bank accounts, investments, shares, family heirlooms, and personal belongings. These items form your estate.

2. Decide on your beneficiaries

Determine who receives or inherits your estate, such as family members, friends, or charitable organisations. Additionally, determine how your assets will be distributed. For instance, you might leave your house to a civil partner and divide a portion of your money between your children.

3. Appoint executor/s of the will

Choose a trustworthy executor to manage your estate after your death. This person can be a family member, friend, or solicitor. They are responsible for ensuring your wishes are adhered to, including fair distribution and estate management.

4. Decide on the guardianship of minor children

Appoint appropriate guardianship for minor children (under 16 years old) to ensure they are cared for in the event of your death.

5. Draft the will using solicitors

Once you have gathered all the necessary details, it’s time to draft your will. It’s highly advised to use professional will solicitors, like Jones Whyte, to ensure all formalities are in order.

Use understandable language to state your wishes and provide clear asset distribution splits among beneficiaries. Include essential details, such as:

Your full name, surname, and your unique citizen reference number
Full names and addresses of the executor/s and PoA
Full names, addresses, and asset distribution splits for beneficiaries
Details about child guardianship
Details about specific funeral arrangements
Details about charitable donations
Any other personal requests (e.g. what happens to your pets)

6. Sign and date the will

You must sign each page of your will in the presence of at least one witness to ensure it is valid. The witness can be anyone over the age of 16 in Scotland. Ensure there is a date on your will, as only the most recent one is valid.

7. Store the will safely

Store your will in a safe place such as with a solicitor or in a secure location at home. Inform the executor/s where it is stored.

8. Update the will

It’s important to review and update your existing will regularly, as major life changes, such as marriage, divorce, or the birth of children, may necessitate changes. You can add documents and/or amendments to your original will (i.e. codicils) or draft a new one.

Requirements For A Valid Will In Scotland

To ensure your will is legally valid, it must meet the following criteria:

Age: Testators (the person making the will) must be at least 12 years old and have legal capacity under the Requirements of Writing (Scotland) Act 1995.
Made freely: Wills are to be made voluntarily, without pressure from other parties.
Mental state: Wills must be made from persons who are of sound mind. A surviving spouse/civil partner or other family members cannot write a will on your behalf.
Format: Wills must be in writing, following Scots Law. This means the will must be signed on each page, in the presence of a witness over the age of 16. Verbal wills are not accepted or recognised in Scotland.
Dated: Wills must be dated as the most recent will is the valid one.
Legalities: You risk invalidating your will if it is not drafted by a professional solicitor accredited by the Law Society of Scotland. Common mistakes when writing a will yourself include not signing each page and not being within the presence of at least one witness.

What should be included in a will?

Several things need consideration when drafting your own will, such as:

Who should inherit your property, money, assets, and possessions
Which beneficiaries you want to include
How your children should be cared for (i.e. appoint guardians)
Who should be responsible for looking after your estate (i.e. executors)
Funeral arrangements
Charitable donations you would like to make

Why Is A Will Important?

A valid will is important because it is a vital aspect of estate planning and administration.

Here’s why:

Asset distribution: Having a will in place gives you control over your assets and how they are distributed to beneficiaries. Without a valid will, the state decides how your estate will be distributed, which may not be to your ideal wishes.
Prevent family disputes: A will helps minimise family conflicts as you leave instructions on who receives which assets. This helps speed up the estate administration process by avoiding disputes and keeping in line with your wishes.
Family protection: Wills provide financial security for your children, spouse, or those in a civil partnership, as well as care and custody for minor children.
Estate management: Appointing executors in your will ensures your estate is taken care of in the event of your death or if you lose the mental capacity to communicate your wishes. It also helps streamline the probate process, ensuring quicker estate wrap-ups.
Reduce inheritance tax: Well-crafted wills can help reduce inheritance taxes, allowing your loved ones to keep more of your assets.

The Benefits Of Using Jones Whyte’s Professional Team

You can’t go wrong with Jones Whyte on your side – here’s why:

Legal expertise: Our Glasgow-based solicitors are accredited with the Law Society of Scotland, ensuring professional services at every turn. We have a deep understanding and over a decade of experience in preparing wills and estate documents for our clients.
Reputation: Established in 2013, our team has grown year-on-year and is recognised as one of the leading law firms in Scotland. We have decades of combined experience in estate management, along with a 4.9/5 star Trustpilot rating, based on over 1,950+ reviews.
Personalised guidance: Our solicitors will meet with you to discuss your specific needs regarding your estate. We’ll help you establish executors and fair asset distribution, discuss tax implications and child care, and ensure your will is legally valid.
Drafting your will: Once we understand your wishes, we’ll help draft your will by clearly outlining the distribution of your estate. Our team is adept at handling simple and complex estates, providing invaluable legal advice to meet your specific needs. We’re committed to ensuring your assets and estate are well taken care of when you pass away.
Accessibility: Our team is hands-on, helping you create a suitable will according to your wishes. We’ll assist in managing your financial assets, inheritance tax and insurance policies, set up executors of the will as well as funeral arrangements, ensuring your wishes are adhered to.
Estate planning: Jones Whyte offers a wide range of estate planning services, ranging from wills, Power of Attorneys, trusts and inheritance tax planning to probate. We’re committed to keeping communications clear and transparent, focusing on the unique nuances of each client’s needs.

Choosing the right legal team when creating a will is crucial, saving you time, money, and stress in the long run.

Key Takeaways

Creating a will involves taking inventory of your assets, establishing an executor and appointing beneficiaries of your estate.
Testators must be at least 12 years old and have legal capacity under the Requirements of Writing (Scotland) Act 1995 to create a will.
Wills must be dated and signed on each page in the presence of a witness to be valid.
No civil partner/spouse/family member can create a will on behalf of a deceased person. Should there be no valid will in place, it is considered “intestate” and the courts will decide on fair asset distribution.
Jones Whyte’s exceptional team of will solicitors have decades of combined experience in drafting wills, offering a wide range of estate planning services for your convenience.

FAQs

What is a will?

A will is a legal written document, outlining a person’s asset/estate management after their death. The testator (the person making the will) states who will inherit and manage their estate, known as beneficiaries and executors respectively, and how their children will be cared for should they pass away.

How long does a will take to settle?

The time it takes to wrap up a will varies, ranging from six to 18 months on average. The timeframe depends on the size and complexity of your estate.

What happens if I don’t have a valid will in Scotland?

Your estate is considered “intestate” if you don’t have a valid will in Scotland. This means your estate distribution will be governed by the Rules of Intestacy set out in Scottish law, whereby the court decides who manages the remaining assets.

However, “Prior Rights” apply to the surviving partner or spouse with regard to a deceased person’s estate. This means they will inherit your house (if this is their primary residence) up to the value of £473,000; furniture up to a value of £29,000; and up to £50,000 cash (if you have children) or £89,000 (with no children).

Additionally, “Legal Rights” comes into play if there is any estate left over after Prior Rights. Under the Succession (Scotland) Act 1964, Legal Rights (a type of forced inheritance in Scotland) entitle a surviving spouse, civil partner and children to a share of the deceased person’s moveable estate – such as money, bank accounts, investments, shares, and possessions – regardless of whether or not there is a will.

What are joint wills?

A joint will is a single legal document containing two separate wills for two individuals.

What are mirror wills?

“Mirror wills” is the term used to describe two wills with almost exactly the same information.

Jones Whyte Is Here To Help

Creating a valid will is crucial for your future estate planning, ensuring your assets are fairly distributed amongst loved ones. However, navigating the complexities of Scots Law can be challenging.

Contact Jones Whyte’s Glasgow-based team at 0800 292 2000 to discuss all your will and estate planning needs today.

View previous story