The Covid-19 pandemic has encouraged many people to think about writing a will or reviewing the terms of their existing will.
Talking to family members about what we want to happen after we die can be a very difficult and emotive subject. However, in light of the current pandemic, many people are starting that conversation with their loved ones.
Solicitors traditionally meet with their clients face-to-face to discuss drafting the will. However, many solicitors have adapted to the challenges of the pandemic and offer video calls via Zoom, Teams or Skype to allow the meeting to be held remotely. This means that you may be able to get assistance with preparing a will if you are shielding or unable to meet your solicitor in person.
In this guide, we consider the practicalities of putting a will in place in Scotland.
Writing a will allows you to nominate the person, or people, that you want to handle your affairs after you die. The Executors are responsible for administering your estate and ensuring that the terms of your will are implemented.
It is advisable to have a think about who you would like to appoint as your Executors ahead of your meeting with your solicitor. You should write down their full names and addresses so that your solicitor can add these details to your will.
Writing a will
Someone who makes a will in Scotland is known as a ‘testator’. You must be over the age of 12 and be of sound mind to write a will in Scotland.
Wills must be in writing and you must sign every page of the will. You must sign your will in the presence of a witness. The witness must sign the final page and add their name and address. The date and place of signing must also be added.
You can ask anyone who is of sound mind and over the age of 18 to witness the signing of your will. However, it is advisable for your witness not to be a beneficiary of your will as this could leave the terms of the will open to challenge.
Spouse and children’s’ legal rights
No matter what you write in your will, your surviving spouse and children and entitled to a share of your ‘moveable estate’. In Scotland, there is a distinction between heritable
property (i.e. a house, flat or land) and moveable property (i.e. non-heritable property, such as cash, cars, clothes, jewellery and investments).
If there is both a surviving spouse and children, the spouse can claim a 1/3 of the moveable estate and the children can claim a 1/3 equally among them. The surviving children or spouse will have a choice of whether to take either the legacy under your will or their entitlement to legal rights, but they cannot take both.
Your will should state any specific legacies you wish to make. These specific legacies could be particular items or specific amounts of cash that you wish to leave to particular people.
Residue of the estate
The ‘residue’ of your estate is what is left over after any specific legacies have been made. The will may state that the residue is to be divided between all of the testator’s children. The will may also state what is to happen in the event that any of the children die before the testator – for example the residue may be divided between the surviving children or the grandchildren may inherit the share that their parent would have been entitled to.
Other matters that can be included in a will
You may wish to include funeral arrangements in your will. If you have young children, you may wish to state the name of the person you would like to look after your children if you died. You may also wish to include a legacy to a charity that means a lot to you or an organisation such as your church.
What are the benefits of making a will?
Dying without a valid will in place is known as dying ‘intestate’. This means that your estate is distributed in accordance with the Rules of Intestacy. This may not be the way you would wish your estate to be distributed.
If you do not put a will in place, you cannot leave a legacy to a friend or a charity. You also have no say over who will act as your executor.
Winding up an intestate estate can be a longer and more expensive process than it would have been if a valid will was in place.
In short, having a will in place allows you to communicate your wishes and can make things easier for the loved ones you leave behind.
This legal update was written in collaboration with Family Law Glasgow.