Online Scottish Wills in Scotland Confidential Expert semi retired solicitor

Frequently Asked Questions about Scottish Wills

What is a Will?
Why should I make a Will?
When do I need to make a Will?
Why do some people not make Wills?
What is the effect of divorce on my Will?
Does my spouse/Civil Partner have any inheritance right if I leave a Will?
What is a joint/mirror Will?
Can I make a joint/mirror Will on MyScottishWill?
Do my children have any inheritance rights if I leave a Will?
Can I cut a relative out of my Will?
I am in a business partnership
My assets exceed the Inheritance tax limit
I own assets outside Scotland
I wish to have a Solicitor/client relationship
Do I need to visit a Solicitor to ratify my Will?
I might be married by habit and repute
Same sex relationships - can my Will be contested?
My affairs are complicated
Can I leave something to my Executor
If I do not leave a Will, will my unmarried cohabitee/partner inherit anything?
Who can be my executor?
What Happens to a Will on Divorce?
Does a separation have the same effect on a will as a divorce?

What is a Will?
A Will is a just a written record that says who you want your money and possessions to go to when you die. As it is a very important document the law specifies what will be recognised as a Will.

Remember, though, that it is a temporary document and can be changed at any time.

Why should I make a Will?
To ensure that your wishes are carried out. Otherwise you leave it to chance and the Law of Intestacy. The result may not be what you expect - see our page on Intestacy for further details.

When do I need to make a Will?
Simply put - now! Only by doing this can you put your mind at rest that your wishes will be carried out. Everyone should have a Will - there are few who have nothing of material or sentimental value to leave behind as a legacy.

Not only that, you will ensure that you leave behind no anxieties or difficulties about winding up your affairs.

Why do some people not make Wills?
Some don't want to think about death. Surprisingly enough, making a Will does not bring your death forward!! If you make your Will now you won't have to worry about it in the future.

Some think they have nothing to leave - if you own your own home you should make a Will but even if you don't own your own house you may have a little money, some furniture or jewellery or even some life insurance policies. It all adds up!

When should I review my Will?
If you marry or have children or otherwise if there is some significant change in your life. This is, critically, so if you divorce. Even without this it is advisable to look at your Will every, say, 3 years.

What is the effect of divorce on my Will?
1. If you have appointed your ex as Executor or left them something in your Will, your ex is treated as having died before you (and thus the appointment or benefit fails) unless you make a statement in the Will that it is to be effective.
2. If you divorce, subsequently, without changing a Will, the same applies.

Remember this only applies to divorce, not separation making it urgent for you to make or change your Will, if you are only separated.

If you wish to benefit your ex, we can insert a clause which make the position clear and you will be invited to make a decision when making your Will on this website.

Does my spouse/registered Civil Partner have any inheritance right if I leave a Will?

In Scotland, a spouse/Civil Partner cannot easily be disinherited.

If you make a Will then you can limit your spouse or Civil Partner's claim to a share in your moveable property.

If you make a Will you can leave your heritable estate to whoever you want. But note the survivorship exception to that general rule.

Types of Property
Heritable Estate	Moveable Estate
Land,buildings,etc	Anything else - including money,shares, share in a business partnership share in a business partnership

If you have made a Will, your spouse/Civil Partner still has the right to make a claim. This claim is to a share in your moveable estate only.

The share amounts to 1/3rd of your moveable estate after debts, expenses, etc. are paid.

Your spouse/Civil Partner cannot accept what is in your Will and make a claim. Your spouse/Civil Partner must choose to do one or the other.

Under present Scots law, the fact that you are cohabiting with (living with) another person whilst still married does not affect your spouse's or Civil Partner's claims upon your Estate at your death.

What is a joint/mirror Will?

This is where you and your partner make identical but separate Wills. For instance, a husband-and-wife leaving everything to each other, whom failing the children.

Please bear in mind that this scenario is not a contract between you and your partner. Either of you can change your individual will, at any time, without the agreement (or even knowledge) of the other. If you require to make a contractual will, you will need to see a solicitor. Contractual Wills are extremely rare (so rare that many solicitors will never have seen, let alone prepared, one) but they are possible.

Can I make a joint/mirror Will on MyScottishWill?

Answer: Yes. In the sense that, since each Will is separate, all you need to do is to, each, make an identical Will. In Scotland, I am unaware of any joint Will Service, anywhere. I have never made one and have found no colleagues who have, either.

Do my children have any inheritance rights if I leave a Will?
In Scotland, children cannot easily be disinherited. If you make a Will then you can limit their claims to a share in your moveable property.

Types of Property
Heritable Estate	Moveable Estate
Land,buildings,etc	Anything else - including money,shares, share in a business partnership

If not mentioned in a Will, children have the right to claim a share (they don't have to claim but, if under 16, a claim will likely be made for them) in your moveable estate only.

Follow these tables to find out what your child is entitled to claim:-

You are married at your death
Your family	Share claimable
One child	1/3rd
2 children	1/6th
3 children	1/9th
4 children	1/12th
5 children	1/15th
And so on, each child being entitled to an equal share in one third of your moveable estate.

You are unmarried at your death
Your family	Share claimable
One child	1/2
2 children	1/4
3 children	1/6th
4 children	1/8th
5 children	1/10th
And so on, each child being entitled to an equal share in one half of your moveable estate.

Under present Scots law, the fact that you are cohabiting with (living with) another person does not affect your children's claims upon your Estate at your death.

Can I cut a relative out of my Will?
That depends on the relative. If it is a spouse (someone you are still married to) or child this is not entirely possible under Scots law, but, by making a Will, you will limit their claims. For what can be claimed if you make a Will see Spouse's/Civil Partner rights and Children's rights.

I am in a business partnership
A Scottish partnership is a separate legal person and can own property.

If you are 1) in a Scots partnership and 2) that partnership owns heritable property then, since a share of a partnership is moveable property that heritable property is treated as moveable for the purposes of inheritance.

For example, a widowed farmer has a son and 2 daughters. He is in a farming partnership with his son - the partnership owns the farm. In his Will he leaves his share in the farm to his son. Unfortunately, the daughters claim their share in the partnership and the son has to sell up in order to pay them out. Had the farm not been part of the partnership assets, his daughters would have been unable to claim a share in it.

For what children can claim where there is a Will see Children's legal rights.

Tax is payable on your Estate when you die on the excess over £325,000.

It is payable at the rate of 40%.

As from 6 April 2017, however, if you 1) are married; and 2) own a property, then up to another £100,000 may be free of tax. This limit is due to increase annually

As with most tax matters, there are a number of complications and there are ways to avoid this tax but it would be wise to see a Solicitor in order to discuss how to avoid the taxman's tricks and traps!

Correct at March 2017

I own assets outside Scotland
What happens to your property abroad when you die depends on the law of that country and we would recommend that you make a Will there to cover the foreign property.
If you have already made a Will abroad and we make no reference to it in this Will then it is quite possible that the foreign Will would be deemed to be superseded by this one and of no worth.
To avoid this we can insert a clause to say that this Will only relates to the property you own in Scotland.
Note. This area can be very complicated and very much outside the scope of a simple Will. There may also be taxation implications. Even if you make a Will now it is very much in your interests to see a lawyer with experience in this area.

I wish to have a Solicitor/client relationship
We cannot offer this for the simple reason that Solicitors are required by the Law Society of Scotland to have personal contact with their client.
This is, for instance, to avoid the situation of a person, up to no good, having a Will prepared for someone else and forcing them to sign it. Or of a child preparing a Will for their aged and mentally impaired parent and thus cutting out his or her brothers and sisters.
We would love to be able to offer a Solicitor's service but regrettably this is not proving to be possible over the Web.

Do I need to visit a Solicitor to ratify my Will?
No - a Will drawn up by you, here, is, as the Law Society of Scotland agreed when asked by the BBC, in all respects, valid.

I might be married by habit and repute
This kind of marriage was abolished in 2006 but if you think that you may have been married by this method prior to that date, you should see a Solicitor.

Same sex relationships - can my Will be contested?
Formerly, only children and spouses (husband/wife) could, of right, contest a Will in Scotland and then, only to a limited degree (see other answers on this page for more details). The advent of formal registered same sex relationships, has, however placed those who have a registered a Civil Partnership in the same position as spouses.
Other relatives have no claim if you make a Will unless you were of unsound mind at the time you signed your Will.

My affairs are complicated
Generally having a Will is better than having no Will, so make a Will here by all means, but bear in mind that whilst this website can prepare a Will for the majority, if your life is complicated, in ways not explored in this Will-making process, you would be well to play safe and to see a Solicitor.
If you think you are in this situation you need to see a Solicitor.

Can I leave something to my Executor
Yes, we have made provisions in your Will that any bequest to an Executor will be valid.

If I do not leave a Will, will my unmarried cohabitee/partner inherit anything?
Not automatically. Unless your cohabitee goes to court to obtain a settlement, your relatives will inherit everything. What your loved one receives will be up to the court. Court action is expensive and the outcome uncertain. You can provide certainty for your loved one by making a Will on this website.

Who can be my executor?
Anyone you choose including relatives and people who are left something in the Will. It would clearly be important to name someone you trust to follow your instructions and they should be an adult (over 16).

What Happens to a Will on Divorce?
On divorce, Scots law treats the former spouse or civil partner as having failed to survive the person who made the Will. Any provision for the ex-spouse or partner within the Will ceases, automatically, on divorce or dissolution, provided that 1. the deceased must have been domiciled in Scotland after 1 November 2016. 2. the divorce or dissolution must be obtained from a court in the United Kingdom, the Channel Islands or the Isle of Man or is otherwise recognised in Scotland.

Does a separation have the same effect on a will as a divorce?
A separation does NOT have the same effect! Reduce the amount claimable by making a new Will and keep him or her out of it. See previous answer.
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