The difference between Scottish and English wills

Many people believe that if they have property and assets in both Scotland and England that they will need two Wills, however this should not be necessary providing you determine where you wish to be officially domiciled.

Scottish Law applies to the estates of people who die and are domiciled in Scotland, so if you are domiciled in Scotland you should take account of the Scottish forced heirship laws.

Alternatively if you are domiciled in England but have secondary property and assets in Scotland, a Will made in England should be sufficient to pass your entire estate, including your property in Scotland to your chosen beneficiaries.

Your Executors should therefore not need to obtain the Scottish equivalent of a grant of probate.

The differences in Scottish Wills

  • Marriage does not invalidate a previous Will in Scotland as it does in England & Wales. Meaning that making a new Will after a second marriage is essential.
  • A Testator must sign the bottom of EACH page of the Will. When signing the Will, witnesses must identify themselves fully with at least their address and ideally with their occupation as well.
  • By making a special handwritten statement, it's possible to sign a Will in Scotland without any witnesses present or for the witnesses to also be beneficiaries. If you are considering doing this it is essential you take further advice with regards to the possible implications, we recommend staying with the same rules that apply in England & Wales.
  • Referring generally to 'children' includes adopted and illegitimate children but not STEP - CHILDREN so these must be mentioned individually if they are to receive any part of the estate.
  • The age for accepting legacies is 14 for boys and 12 for girls although the age of actual receipt could still be stipulated with an additional clause in your Will.
  • The spouse and children have 'prior rights' under Scottish law so that they cannot be deliberately excluded from inheriting. The spouse would be entitled to the House to the value of £65,000, furnishings to £12,000 plus Cash to £21,000, if there are children or £35,000 if there are no children
  • After the 'prior rights' have been satisfied, the spouse and/or children have legal rights to half of the 'moveable estate', for example cash, investments and only the remainder can be disposed of to other parties.
  • Any surplus property such as a second property or land is known as the 'heritable estate' and this can be disposed of as the testator wishes.
  • A surviving spouse is entitled to be a sole executor of the estate so we would suggest using this option and appointing two other executors in the reserve position; the survivor can always relinquish executor-ship if they believe the reserve executors are better able to do the job.