The law regarding Wills in Scotland and England does differ regarding certain areas that I will outline in today's blog post.
A lot of 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 get straight from outset were you consider yourself to be officially domiciled.
Scottish Law applies to the estates of people who die and are domiciled in Scotland, for example having your main residence / family home in Scotland.
If you are domiciled in Scotland then it would make sense to have your Will drafted by a Scottish solicitor and take account of the Scottish forced heirship laws.
On the flip side if you are domiciled in England but have secondary property and assets in Scotland, a Will made in England and Wales English should be sufficient to pass your entire estate, including your property in both England and Scotland.
This is because the probate courts in England and Wales would consider the Will of someone who dies domiciled in England to be valid and this would also be recognised in Scotland.
Your Executors should therefore not need to obtain the Scottish equivalent of a grant of probate.
The Main Differences Between England & Scotland Wills
- Marriage does not invalidate a previous Will 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 second houses, 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.
Summary
We highly recommend that when considering which type of Will to make, if you are in any doubt, you should seek the advice of a professional Estate Planning Consultant or a Solicitor.
Related Links
ft.com - Will my will be recognised in Scotland?
trustees.org.uk - Comparison Of English and Scottish Intestacy Rules
What Is A Grant Of Probate
What To Expect From A Will Writing Consultation
