FAQ on Wills in Scotland
Death and taxes (and wills) - How to write a Valid Will in Scotland
Can a person making a will disinherit family members?
You can partly disinherit a spouse or children, but the law puts a limit on that. Spouses and civil partners ( note all references in this piece to spouses includes civil partners) have the right of ius relicti (husband) or ius relictae (wife) and children have the right of legitim. They cannot be disinherited from those rights. See the next section for the details
What is the order of priority in the family when someone dies without a will?
In the absence of a will to deal with the whole estate, the order, after paying debts and dealing with legal rights is detailed and exact:
The law divides the estate of a deceased into 3 parts - the prior rights; the legal rights, and the free estate.
After payment of debts, everything is then divided up in a set way. Statutory Prior Rights go first – they give the surviving spouse or civil partner the house even if it is in the sole name of the deceased (up to a maximum value of £473,000), the furniture and plenishings (that's the technical word in our law) in the house up to £29,000 in value, a sum of money being the first £50,000 if there are children surviving and £89,000 if there are not.
If there is a spouse and there are children, the spouse is then also entitled to one-third of what's left. If there are no children, the spouse gets a half. If there is a surviving spouse/parent, the children share a third among themselves. If no spouse, they share a half. The deceased cannot get out of this by trying to will everything to someone else. This is the order of priority for inheriting the free estate:
1. children – sharing equally. Note the eldest has no priority.
2. parents and brothers and sisters – half to each group
3. brothers and sisters ( if no parents)
4. parents (if no brothers and sisters)
6. uncles and aunts
8. brothers and sisters of grandparents.
Note each category takes the whole remaining estate. So if there are no children but there are brothers and sisters, there will, be nothing left for the spouse. This section is a very brief explanation of what can really fill a whole book. The real answer is to make a will.
What is the benefit in making a will?
Unless you have children or a spouse you want to disinherit as far as possible, a will is the way of dividing up your estate as you wish. Without a will, no charity can benefit, nor can any friend. You cannot leave a memento or keepsake to a specific family member. Also without a will, your family will have a bigger and more expensive job to wind up your estate after your death.
What is the cost of making a will?
The fee incurred depends on the simplicity or complexity of the will, but we will always quote you an exact fee in advance and in writing, and do not charge for a preliminary meeting or discussion with one of our solicitors about what's needed.
What do you put in a will?
Three main things to start with. Firstly: a will should nominate an executor, and also a reserve executor if the nominated one dies or is not able to take up the position after the death of the testator (perhaps as he is the testator's husband and dies with him in an accident). The executor's duties, such as payment of debts and funeral expenses should be stated. Secondly, a statement of any specific legacies the testator wishes to be paid, if any – to friends, family, churches, charities, cat and dog homes. If a will is not made, no-one except the closest family members will get any part of the estate. Thirdly, division of the residue, which is what is left after the specific legacies, if any. The will may state that the estate is to be divided equally among the children. The question often needs to be asked – what if one of the children dies before the testator, leaving children of his own? Do those grandchildren inherit their parent's share, or is the share re-divided among the surviving children? The will must state what is to happen if any beneficiaries die. There are other provisions that can be put in wills – funeral arrangements, personal comments (good and bad...), powers for the executor to invest money for any under-age beneficiaries. Some younger testators state a wish in the will for any young children they leave behind to be cared for by a particular person. There is nothing wrong with doing this, but such a statement is not binding if a different person claims care of the children and goes to court to seek a parental rights order. The court will decide what is in the children's best interests at that point.
What is a living will, and is it legal?
A living will is a statement of intent. In the event that the testator will in the future be badly injured or fall terminally ill, the instruction is that there is to be no resuscitation or life-preserving medical treatment. Some people even go further, but euthanasia is still a crime in this country. The will does not have the force of law, and is no more than an expression of a wish. It can guide relatives and medical staff, but cannot bind them to act or refrain from acting as they see fit.
How can a will be challenged?
The very name Will presupposes the person making and signing it is doing so by their own deliberate and considered decision. Thus, if that can be proved not to be so, then the will can be struck down. The main reasons are that the will is a forgery, that it was signed under some sort of duress, that the testator was incapable of truly understanding what he or she was doing when signing, that the testator was of weak will and easily led into making a will be unfair persuasion, or that there was undue influence by someone who took advantage of a position of trust, such as a solicitor who wrote the will to give himself a legacy in his own client's estate. But if an aggrieved relative wants to challenge, he must do so in court, and prove by clear evidence (especially medical evidence in the case of an insanity case) that the will is not valid, and that is a high hill to climb. Supposition and suspicion are not enough. And if the will was prepared by or under the supervision of a lawyer, then it is likely that the lawyer will be able to say that he or she took care to check the willingness and understanding of the testator at the time.
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