AA Legal Documents

Making a Will - Scotland

Contents

This section tells you everything you need to know to begin drafting your Will. Below you will find a summary of what a Will is and why you need one. If you would like to find out more information, click on the relevant links to access more articles.

What is a Will?

A Will is a written declaration setting out the way in which a person's property, assets and wealth is to pass on their death. It can also appoint a guardian for any children you may have who are under the age of 16 and appoint one or more executors (Appointing executors and guardians), who carry out the instructions in your Will. If you die without a Will, the state decides who gets what, without regard to your wishes or your heirs' or dependants' needs.

Why you need a Will

It is important to make a Will because:

  • If you die without a Will, there are certain rules that dictate how your assets (comprising money, property or possessions) should be allocated. This may not be the way that you would have wished your money and possessions to be distributed. For more information on these rules, see Dying without a Will.
  • There are issues that can arise for unmarried couples and same sex couples who have not registered a civil partnership if there is no Will. Thus, although cohabitees have a right to apply to the Sheriff Court within 6 months of their partner's death for a share of the estate, what they are allowed to claim may be much less or even much more than you would want them to have.
  • If you have children, particularly children under 16 or children from another or previous relationship, you will need to make a Will so that arrangements for the children can be made if you die.
  • It may be possible to reduce the amount of tax payable on the inheritance (Inheritance Tax) if advice is taken in advance and a Will is made.
Having a Will is the only way to be sure that your estate is dealt with according to your wishes when you die. Without a Will, your assets may end up being distributed by prescribed rules. It is not the case, as many assume, that if a husband or wife dies their estate will always automatically pass to their spouse. In fact, a substantial amount may go to other relatives.

A Will ensures therefore that your estate is distributed as YOU would like it to be, and that your loved ones are properly provided for. It may also help to ensure that the people you leave your estate to do not have to pay more tax than absolutely necessary. If you are not married or in a civil partnership, it is even more important that you make a Will, particularly if you have a partner and/or children to whom you wish to leave many or all of your assets.

In unusual cases where your estate is beneath the prior rights limit (Dying without a Will) and you want your spouse or civil partner to inherit everything, but anticipate a legal rights claim (Family left out of the Will) by your children or those acting on their behalf if you had made a will, it may be better for your spouse or civil partner if you died without a Will. If you are in this situation, you should seek early legal advice.