A practical introduction to why people make wills in Scotland, what intestacy means and when professional advice may be especially important.
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The short answer
There is no general legal obligation to make a will in Scotland. You can decide not to make one. The important consequence is that, if you die without a valid will, the part of your estate governed by succession law will be dealt with under Scotland’s intestacy rules rather than a set of instructions chosen by you.
For many people, a will is a practical way to record who should deal with their estate, who they would like to benefit and how particular family or personal circumstances should be addressed. It may be especially useful if you have a partner, children or other dependants; own a home or business; have a blended family; want to leave particular gifts; or want to nominate executors or guardians.
A will does not provide unlimited freedom. Scottish succession law gives certain family members legal rights that may be claimed from the moveable estate, even where a will says something different. Property titles, pensions, insurance policies, trusts, jointly held assets and business agreements may also affect what passes under a will. A Scottish solicitor can help you understand how these parts fit together.
This guide gives general information to help you prepare for that conversation. It does not assess what you personally should put in a will.
What happens if you die without a will in Scotland?
Dying without a valid will is known as dying intestate. It does not mean that the estate has no destination. Instead, legislation supplies a default order for dealing with it. The rules take account of matters including whether there is a surviving spouse or civil partner, children or more remote descendants, and other relatives. Prior rights and legal rights may also be relevant.
The result depends on the composition and ownership of the estate as well as the family relationships involved. It is therefore unsafe to assume that “everything goes to my partner” or that relatives can simply agree informally on what the deceased would have wanted. The Scottish Courts and Tribunals Service guide to dealing with a deceased’s estate explains that the procedure differs depending on whether a valid will exists. Where there is no will, additional steps can include having an executor appointed by the court and, in some cases, obtaining a bond of caution.
Intestacy rules are general rules. They cannot know which relationships mattered most to a particular person, which possessions had sentimental importance, or who that person thought would be best suited to administer the estate. A valid will can address many of those choices, subject to Scottish law.
Read the WillWise guide to intestacy in Scotland for a broader introduction. Do not use a general guide to calculate an inheritance: a solicitor can identify which rules apply to a particular estate.
Common practical reasons for making a will
People make wills for different reasons. The value of a will is not limited to very wealthy estates. Common practical aims include:
naming the person or people you would prefer to act as executors;
identifying intended beneficiaries and replacement beneficiaries;
recording particular cash gifts or gifts of possessions;
explaining how the remainder of the estate should be distributed;
considering arrangements for children or other dependants;
making a written guardianship appointment where appropriate;
dealing with business shares or other less straightforward assets;
leaving charitable gifts;
giving the executor clear instructions about matters the will can properly address; and
reducing uncertainty about your intentions.
Some wishes are better kept outside the will. For example, detailed personal information, frequently changing instructions and passwords should not be placed in a document that may later be used in estate administration. A solicitor can suggest whether a separate letter of wishes or secure record is more suitable. Such a letter may guide the people involved, but it should not be assumed to have the same legal effect as the will.
Making a will is only part of preparation. It is also useful to maintain a clear inventory of assets, liabilities, pensions, insurance arrangements and important contacts. The inventory should help an executor locate information without becoming a store of passwords, PINs or authentication codes.
Marriage, civil partnership, cohabitation and family circumstances
Relationships are one of the main reasons to consider tailored advice. Similar-looking households can have very different succession outcomes.
Marriage or civil partnership
A surviving spouse or civil partner has significant rights under Scottish succession law. However, it is still risky to assume that intestacy will produce exactly the intended outcome, particularly where there are children, property interests, previous relationships or specific gifts to consider.
Marriage or civil partnership does not automatically revoke an existing Scottish will. That makes review important: a will made years earlier may remain legally relevant while no longer reflecting the person’s family circumstances. Divorce, dissolution and annulment can affect provisions relating to a former spouse or civil partner under the Succession (Scotland) Act 2016, but relying on a general description of those rules is not a substitute for reviewing the actual document. Read Do You Need to Update Your Will After Marriage in Scotland? for the jurisdiction-specific review points.
Cohabitation
Living together does not give a partner the same automatic succession position as marriage or civil partnership. If a cohabitant dies intestate, the survivor may be able to apply to court for financial provision under section 29 of the Family Law (Scotland) Act 2006. That remedy is not an automatic inheritance. Eligibility, the available award and the court deadline require prompt professional advice.
A will can therefore be particularly important where a person wants a cohabiting partner to benefit. Ownership documents, survivorship provisions, pension nominations and insurance arrangements should also be reviewed rather than assuming the will controls them all.
Children, dependants and blended families
Children and remoter descendants may have legal rights regardless of the terms of a will. Stepchildren do not necessarily have the same succession status as biological or legally adopted children, while a person may also want to consider foster children, adult dependants or someone with additional support needs.
Blended families often require careful drafting. A wish to support a current spouse or partner while also preserving value for children from an earlier relationship can involve competing needs and different types of asset. Trust provisions may sometimes be discussed, but their legal, tax and administrative implications need individual advice. A general online template cannot evaluate those trade-offs.
Property, business interests and particular gifts
Homes and other property
Owning a home is a common reason to seek advice, but the name on a mortgage statement is not the whole picture. Title conditions and the way property is owned can affect what happens on death. In some cases, a survivorship destination in title may cause an interest to pass independently of the will. In other cases, the deceased’s interest may form part of the estate.
This matters for sole owners, co-owners, couples who contributed different amounts and people who own property outside Scotland. A solicitor can examine the title and explain what the will can control. Overseas property may also require advice in more than one legal jurisdiction.
Business ownership
Sole traders, partners, company shareholders and people involved in family businesses may need coordinated succession planning. Relevant documents can include partnership agreements, articles of association, shareholder agreements, option arrangements, insurance and lending terms. A gift of “my business” in a will may not match the legal assets actually owned by the individual.
Business continuity, authority to operate accounts, valuation and tax can add urgency and complexity to estate administration. Legal and financial advisers may need to work together. Before a meeting, gather the business name, structure, ownership percentage and the location of key agreements, but do not upload confidential credentials unnecessarily.
Specific gifts
A will can identify a particular sum, possession, share or charitable gift. Clear description matters. Assets can be sold, replaced or jointly owned; a beneficiary may die first; or the estate may not contain enough value to meet every gift after debts, tax and administration expenses.
Tell the solicitor what you want to achieve rather than trying to invent technical wording. Also consider a replacement recipient and what should happen if an identified item is no longer owned. For changing everyday possessions, a more flexible approach may be appropriate.
Executor preferences and guardianship wishes
Executors
An executor handles estate administration. The work commonly includes identifying and valuing assets and liabilities, dealing with tax and confirmation where required, paying appropriate debts and expenses, and distributing the estate. A will lets you nominate an executor rather than leaving an application for appointment after death.
Consider trustworthiness, willingness, availability and the complexity of the estate. It can be useful to nominate a substitute in case the first person cannot act. Ask before naming someone where practical, and avoid assuming that the oldest child or closest relative is automatically the best choice. Read more in Executors in Scotland.
Guardianship wishes
For a parent with a child under 16, guardianship may be an important part of the discussion. Section 7 of the Children (Scotland) Act 1995 provides for a parent to appoint a guardian in the event of the parent’s death, subject to statutory conditions. The appointment must be in writing and signed, and its operation can depend on parental rights, surviving parents and any relevant court order.
The decision should be discussed carefully with the proposed guardian. Think about relationships, location, capacity to care, the child’s needs and whether a substitute is appropriate. Financial provision for a child is a separate but connected subject. See Guardians and Children, then ask a Scottish solicitor how the appointment would work in your circumstances.
How Scottish legal rights can affect a will
Scottish law does not provide complete freedom to leave the whole estate in any way a person chooses. A surviving spouse or civil partner and the deceased’s children or their descendants may be entitled to claim legal rights from the moveable estate. Moveable estate generally includes assets such as money, investments and possessions rather than land and buildings, although classification and calculation can require legal analysis.
Legal rights can be relevant even where a valid will exists. They can affect the amount ultimately available for other gifts and may create choices for an entitled person. Family structure, lifetime gifts, debts, asset ownership and the distinction between moveable and heritable property may all matter.
Do not try to remove, calculate or plan around legal rights using a general article. The Succession (Scotland) Act 1964 is central legislation, but applying it requires the facts of the estate. The WillWise guide to Scottish Legal Rights can help you prepare questions for a solicitor.
Common misconceptions
“My family knows what I want”
Family knowledge is not a substitute for a valid will. Informal conversations may be remembered differently and do not displace statutory succession rules.
“Everything automatically goes to my spouse or partner”
The result depends on whether the person is a spouse, civil partner or cohabitant, who else survives, the assets involved and how they are owned. Cohabitants do not inherit automatically merely because they lived together.
“Marriage cancels my old Scottish will”
Marriage or civil partnership does not automatically revoke an existing will in Scotland. An old document should be reviewed rather than assumed to have disappeared.
“A will controls every asset”
Some assets may pass under title conditions, joint ownership arrangements, pension or insurance rules, trusts or business agreements. The will must be considered alongside those arrangements.
“I do not own enough to need a will”
Value is only one consideration. Executor choice, guardianship, particular possessions, digital assets, charitable gifts and clarity for those dealing with the estate may matter even where the estate is modest.
“An online form guarantees a valid result”
No form can guarantee validity or suitability. Capacity, freedom from pressure, signing formalities and the wording used can all matter. Complex or ambiguous drafting may only become apparent after death, when the person cannot explain what they meant.
When is a solicitor particularly important?
Professional advice is sensible for will drafting generally and is particularly important where:
you live in Scotland but own assets, have citizenship connections or spend substantial time elsewhere;
you own a home jointly or are unsure about a survivorship destination;
you cohabit and want your partner to inherit;
you have children from different relationships or want to provide for stepchildren;
a beneficiary is young, vulnerable, disabled or may need a trust;
you own a business, farm, partnership interest or private company shares;
the estate may have inheritance tax, agricultural or business-relief considerations;
you want to exclude or limit provision for a spouse, civil partner or child;
there is a risk of disagreement, pressure, capacity concerns or a potential challenge;
you want conditions attached to a gift;
you have an existing will from another country or legal system; or
you want to change or revoke an existing will.
A solicitor can verify identity and capacity, discuss legal rights, examine titles and existing documents, draft appropriate clauses and supervise valid signing. Tax, investment or business advice may also be needed from another suitably qualified professional.
How to prepare before meeting a Scottish solicitor
You do not need to draft legal clauses before the meeting. It is more useful to organise accurate information and explain the outcome you hope to achieve.
Prepare a working note covering:
Your full name, address and relevant family relationships.
Any existing will, codicil, trust, pre- or post-nuptial agreement, separation agreement or power of attorney.
Potential executors and substitutes.
Intended beneficiaries, charities and replacement beneficiaries.
Children, dependants and possible guardians.
Property, savings, investments, pensions, insurance, debts and significant personal items.
Business interests and the location of governing agreements.
Overseas assets or connections.
Digital assets and the location of secure access arrangements—without placing passwords in the preparation.
Questions about legal rights, tax, asset ownership and anything that may cause disagreement.
WillWise can help you organise this information before the appointment. It does not turn your answers into a legal will, and the preparation report is not legal advice. A Scottish solicitor can use the organised information as a starting point, ask follow-up questions and advise on a document suited to your circumstances.
This guide provides general legal information for Scotland. WillWise is not a law firm, does not provide legal advice and does not create a legally valid will. Seek advice from a Scottish solicitor about your individual circumstances.
Frequently asked questions
Is it a legal requirement to make a will in Scotland?
No. There is no general legal obligation to make a will. If a person dies without a valid will, however, Scottish intestacy rules determine how the relevant estate is distributed.
Will my cohabiting partner automatically inherit?
Not simply because you live together. A surviving cohabitant may be able to apply to court for provision from an intestate estate, but this is not automatic and strict conditions and time limits apply. A Scottish solicitor can explain the position.
Does marriage or civil partnership cancel an existing Scottish will?
Not automatically. A change in relationship can still make an existing will unsuitable, so it is sensible to ask a Scottish solicitor to review it after marriage, civil partnership, separation, divorce or dissolution.
Can a will record who I would like to care for my children?
A parent may use a signed written appointment to nominate a guardian, subject to the statutory rules and the circumstances at the time. Professional advice can help ensure the wording and wider arrangements are appropriate.
Can I write my own will?
It is possible to prepare a will without a solicitor, but Scottish wills have formal validity requirements and mistakes can have significant consequences. Professional drafting is particularly important where family, property, business or tax circumstances are not straightforward.
How often should I review a will?
There is no single timetable for everyone. Review is commonly considered after major life, family, property or financial changes, and periodically to confirm that appointments and wishes remain suitable.
Sources
Authoritative references used to support and review this guide.
