Writing a will in Scotland isn’t quite the same process as it is south of the border, and that surprises a lot of people. Scots law has its own rules on inheritance, its own protections for spouses and children, and its own quirks around property and moveable assets. If you’re putting off writing a will because you’re not sure what it can and can’t cover, you’re not alone – it’s one of the most common questions we hear at Family Lawyers Glasgow. This article walks through what you can actually include in a Scottish will, why legal rights matter more here than many people realise, and what happens if you don’t get round to making one at all. If any of this raises questions specific to your own circumstances, our Complete Clarity Solicitors Family Law Team is always happy to talk it through with you – a short conversation now can save your family a great deal of stress later.
What Is a Will and Why Does It Matter in Scotland?
A will is, at its simplest, a legal document that sets out what should happen to your estate after you die. That sounds straightforward, but in practice a well-drafted will does a lot more than list who gets what. It names your executor, it can set conditions on gifts, it can provide for children from a previous relationship, and it can help avoid the kind of family disputes that, sadly, we see all too often when someone dies without clear instructions.
In Scotland, the rules around wills are shaped by scots law, which differs from English law in some fairly significant ways – particularly when it comes to legal rights and how heritable property is treated. This often comes as a surprise to clients who’ve moved to Scotland from elsewhere in the UK, or who have family connections both north and south of the border. Getting proper legal advice early on tends to prevent a lot of confusion down the line.
What Can You Actually Include in Your Will?
Most people assume a will only deals with money, but a Scottish will can cover a surprising range of matters. You can leave specific items to named beneficiaries, set out how your estate should be divided if a beneficiary dies before you, appoint guardians for young children, and include instructions about your funeral wishes (though these aren’t legally binding in the same way as the rest of the document).
You can also use your will to leave your heritable property – your house, land, or any buildings you own – to a particular person, provided there isn’t a clause in the title deeds that says otherwise. Moveable estate, which is essentially everything that isn’t land or buildings – savings, cars, jewellery, shares – can be distributed however you choose, subject to the legal rights we’ll come to shortly. For most people, this flexibility is exactly why having a will in place, rather than relying on the default rules, matters so much.
Who Can Write a Will, and What Are the Requirements?
To make a valid will in Scotland, you generally need to be over sixteen, of sound mind, and acting freely rather than under pressure from anyone else. There are also formal requirements that they must meet: the document must be signed, and in most cases witnessed, to be considered testamentary and legally enforceable. It sounds like a small technicality, but we’ve seen otherwise well-intentioned wills fail simply because the signing wasn’t done correctly.
This is really where using a solicitor earns its keep. A solicitor won’t just check the paperwork is in order – they’ll ask the questions you might not think to ask yourself, about second marriages, business assets, or what happens if a beneficiary predeceases you. Writing a will in Scotland without proper guidance is possible, but in many cases it ends up costing more in the long run, either through delay or through disputes that a clearer document would have avoided.
Who Should Be Your Executor?
Your executor is the person, or people, responsible for dealing with the estate once you’ve died – gathering in the assets, paying any debts, and distributing what’s left to your beneficiaries. You can appoint one executor or several, and there’s no fixed number of executors you have to name, although most people choose two, often a family member alongside a solicitor.
Choosing an executor isn’t always as simple as picking your eldest child or your spouse. It’s worth thinking about who has the time, the temperament, and ideally some financial common sense to handle what can be a fairly involved process. If the estate is complicated – a business, property abroad, or several beneficiaries with competing interests – professional support becomes even more valuable. It’s also worth knowing that any debt against the estate must be paid before any legacy or payment is made to beneficiaries, so your executor needs to understand that order of priority.
What Are Legal Rights, and Who Can Claim Them?
This is probably the single biggest difference between scottish wills and wills made elsewhere in the UK, so it’s worth taking time over. Under scottish law, a surviving spouse or civil partner and children have what’s called legal rights – a fixed entitlement to a share of the deceased’s moveable estate, regardless of what the will actually says. You can’t simply write your spouse or children out of your will and expect that to be the end of it; legal rights sit outside the will entirely.
So how much is the share each person is entitled to? If there’s a spouse or civil partner but no children, the spouse is entitled to one-half of the deceased’s moveable estate. If there are children as well, the split changes: broadly, a surviving spouse or civil partner then the children divide the moveable estate between them, with the spouse typically receiving one-third and the children sharing one-third, depending on the exact family circumstances. Children or grandchildren are entitled to claim legal rights whether or not they’re mentioned in the will, and this includes children born outside marriage, who have the same legal rights claim against their biological parent’s estate as any other child.
A partner or child can claim their legal rights within a set period after death, and if there’s disagreement about the legal rights calculation, it may be necessary to apply to the sheriff court to resolve it. It’s a part of succession law that catches a lot of people out, particularly those trying to leave everything to a new partner while there are children from an earlier relationship. If you’re in that position, it really is worth getting proper legal advice before you finalise anything, so you understand exactly what can and can’t be included in the legal rights calculation.
How Does Scots Law Differ from the Rest of the UK?
Because Scottish and English succession law diverge on several points, this often trips up families with connections across the rest of the UK. Legal rights, as we’ve covered, simply don’t exist in the same form under English law – there, a person generally has more freedom to leave their estate as they wish, subject to certain claims that work quite differently. Whether Scottish or English rules apply to your estate can depend on where you’re domiciled in Scotland versus domiciled elsewhere, and heritable property is usually dealt with under the law of the country where it’s situated, which can create genuinely tricky cross-border situations.
If you own land and buildings in more than one part of the UK, or you’ve lived in more than one jurisdiction, this is exactly the kind of thing to raise with a solicitor early. The legal differences aren’t always intuitive, and assuming the same rules apply throughout the UK is one of the more common – and more costly – mistakes people make when they’re married or in a civil partnership with assets on both sides of the border.
What Happens If You Die Without a Will?
If someone dies intestate in Scotland – meaning without a valid will – the estate is distributed according to a fixed legal order rather than personal wishes. A spouse or children may still be entitled to a share of the estate, but the process becomes more rigid, and it’s the rules of intestacy, not your own preferences, that decide who gets what. For unmarried partners in particular, this can mean receiving nothing at all, since only spouses, civil partners, and specific categories of relative are automatically entitled to claim under intestate succession.
This is really the strongest argument for writing a will sooner rather than later. Nobody likes to dwell on it, but the assets of the estate you’ve spent a lifetime building deserve to go where you actually want them to go, not to wherever the default rules of scots law happen to point.
Can Your Will Cover Powers of Attorney or Trusts?
Powers of attorney are technically a separate legal document from your will – they deal with decisions made while you’re alive but unable to manage your own affairs – but the two are often discussed together, since planning for incapacity and planning for death tend to go hand in hand. Setting up a trust can also work alongside your will, particularly if you want to provide for young children, protect assets for a vulnerable beneficiary, or manage inheritance tax more carefully. These arrangements add a layer of complexity, and they’re not something we’d generally recommend tackling without legal advice, given how much rests on getting the drafting right.
Getting the Right Advice
Scottish succession law has more moving parts than people expect, from legal rights and heritable property through to the formalities around signing and witnessing. None of it is impossible to understand, but it’s easy to get wrong without support, and the cost of a mistake usually falls on the family you’re trying to protect. If you’re ready to make a will, update an existing one, or you’re simply not sure where your estate would end up under current rules, get in touch with Family Lawyers Glasgow. Our Complete Clarity Solicitors Family Law Team will talk you through your options in plain English, at a pace that suits you, so you can put a plan in place with confidence rather than guesswork.
