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5 common questions clients ask when considering making a Will in Scotland

Written by: Lesley Anderson
Category: Private Client
25 February 2022

5 common questions blog

We have made Wills for thousands of clients over the years. Clients always have questions about the process and about the content of their Will. In this article, we will look at some of the most common questions clients ask. We will cover the following questions:

  • How do I go about making a Will?
  • Will my spouse or partner automatically inherit my house if there isn’t a Will?
  • Can I disinherit my children?
  • I have children from a previous relationship – how do I protect their right to share in my estate?
  • Does my executor need to follow the instructions in a Will?

How do I go about making a Will?

The first thing we will do is ask you to meet with us. This can be in person or over a video call. In that meeting, we will ask you a lot of questions.

We need to know about all the assets you own and what you would like to do with them. We will discuss any liabilities you have and how these might be met. In addition, we will ask you about your family members and the relationships you have. All of these are vitally important before we start looking at preparing your Will.

We will then ask you what you would like done with your assets after your death. In other words, who would you like to pass these to. In addition to that, we will ask “whom failing” type questions. This means that if you decide to leave an asset to an individual and should that individual die before you do, do you want that asset then to go to someone else. An example of this is your house. Let’s say you decide to leave your house to your spouse or partner. We will ask you what should happen to the house should your spouse or partner pass away before you. You can then decide if it should be left to someone else or, perhaps, sold and the proceeds divided amongst children or whether it should form part of the residue of your estate.

Another area of discussion is whether there are any possible Inheritance Tax issues. If there are, we will recommend some specialist advice be taken.

We will take detailed instructions about everything you would like done after your death and then we will prepare your Will. We will send a draft of this to you for your review. Once you have reviewed it, we will deal with any changes and when you are happy with the terms of your Will, we will invite you to sign it.

We aim to make the entire process as straight forward as possible and answer all your questions throughout.

Will my spouse or partner automatically inherit my house if there isn’t a Will?

There are a number of different scenarios we will need to discuss with you, some of which depend on the title to your property.

If the title to the house is in your name alone and if you are married or in a civil partnership, if you do not have a Will, your spouse or partner has Prior Rights. That means they are entitled to inherit the family home (up to a value of £473,000) and all its contents (up to a value of £29,000).

You should be aware that if you are cohabiting with a partner but are not married or in a civil partnership with them, they have no automatic entitlement to ownership of the family home. For that partner to inherit your house, you would need to specifically leave the house to them or, if there is no specific provision, make sure they are entitled to the residue of your estate.

If the title to the house is in joint names with your partner (whether you are married or in a civil partnership or not), there are two possible outcomes.

If the title contains a survivorship destination, that means once your death, the title to the whole property automatically transfers to your partner. Where there is no survivorship destination, if you have no Will and are married or in a civil partnership, the title to your share in the property passes to your spouse or civil partner under Prior Right. However, if you are cohabiting with your partner and are not married to or in a civil partnership with them, if there is no Will, they have no entitlement to inherit your share in the house.

If you do not make a Will in this latter situation, your children or, if you have no children, other relatives will be entitled to your share in the house. If relations with your surviving partner and your children or other relations are not good, this can lead to a very fraught time for your partner. You can resolve this issue by making a Will.

Can I disinherit my children?

Children have Legal Rights in Scotland. This means when you die, your children are entitled to share in your estate. This applies whether you have a Will or not.

Legal Rights are complex and apply, initially, to moveable estate. That is estate that, generally, is not made up of land and buildings. In addition, where there is no Will, Legal Rights apply when Prior Rights have been exhausted.

This means that once Prior Rights have been satisfied your spouse or civil partner and your children are entitled to Legal Rights to your estate. We have touched on Legal Rights before in our article What happens if you don’t leave a Will which you can read here.

I have children from a previous relationship – how do I protect their right to share in my estate?

As discussed in the previous point, your children, whether from a current or previous relationship, are entitled to Legal Rights in your estate. However, if your spouse or civil partner inherits your entire estate under Prior Rights (if you have not made a Will), then there will be no Legal Rights available to those children.

That means when your spouse or civil partner dies, any children who are not shared with him or her, have no entitlement to share in their estate.

Does my executor need to follow the instructions in a Will?

Your executor has to follow the instructions you state in your Will. However, if all of the beneficiaries agree to vary or alter the terms of your Will, then your executor will be entitled to deal with the change of instructions rather than the original instructions in the Will.

We hope this article addresses some of the questions you might have on the process involved in making a Will. We are sure you have many more questions you would like answered. If you would like to ask more questions or to make or change your Will, please get in touch today.

Written by:

Lesley Anderson

Partner
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