Wills

It should be noted that the information contained in this section relates to our current understanding of the law of Scotland, which is subject to change. Laws in other parts of the UK will differ.

Will Writing is not regulated by the Financial Conduct Authority.

What happens if you don't make a will?

Making a will is one of the most important things you can do. Everything you leave when you die, less anything you owe, is called your 'estate.' A will sets out what is to happen to your estate. It is a legal document that determines how your possessions, money and other assets will be shared among your close family and friends. A will can cover a range of issues such as:

• Who should inherit your property and assets.
• How minor children are to be cared for.
• Who will look after your estate (executors).
• Arrangements for your funeral.

Dying without a will (called dying intestate) can cause unnecessary hardship for those you leave behind:

Although there is no legal requirement to make a will, failure to do so can mean your property and possessions being distributed according to the law and not your wishes. If you pass away without a legally sound will (intestate), you will have no say over how your estate is distributed. Even if you wanted someone to receive a part of your estate or told them they would, there are no guarantees these wishes will be upheld. 

Under Scottish law, a surviving spouse, civil partner and children are entitled to certain legal rights out of the person's moveable estate regardless of whether the deceased died testate (having made a will) or intestate. A moveable estate includes things such as shares, cars, furniture, money and jewellery.

The consequences of not making a will:

• Delays would be incurred in trying to find out whether or not you did, in fact, leave a will, and in tracing your possessions.
• Delays would occur in the necessary formalities required before your estate can be distributed.
• Your next of kin will usually be appointed to sort out your estate, and he or she might not be the best person to do the job.
• The law dictates who will inherit your estate and in what proportions, depending on whether you were married and/or have any children or grandchildren.
• You may not have control over who looks after your children.
• More inheritance tax may be payable.
• An unintended beneficiary may inherit something from your estate.

The rules do not recognise unmarried partners

Couples who are not married or who have not registered a civil partnership do not automatically inherit from each other when one partner dies unless there is a legally sound will.

However, if you were living with your partner, you may have rights as a 'cohabitant.' Under Scottish law, a cohabitant is a person who is or was living with another person as if they were husband and wife, two people of the same sex or civil partners.

In deciding whether you are or were a cohabitant and entitled to a share of your partner's estate, the court will consider several factors. These include:

• The length of time you lived together.
• The size of the estate.
• Other benefits you might receive from your partner, such as the proceeds of a pension scheme.
• Claims on the estate from other people.