What does a wills and estate planning solicitor cover in Scotland?
Solicitors who specialise in this area, often called private client solicitors, help you plan what
happens to your property and who makes decisions for you if you cannot. Their work typically includes:
- drafting and updating wills
- explaining the legal rights of a spouse, civil partner and children
- preparing continuing and welfare powers of attorney
- setting up and running trusts
- general inheritance tax planning
- advising cohabiting couples, who have no automatic inheritance rights
When someone dies, the work of collecting and distributing their estate is called executry. Our guide to
executry solicitors in Glasgow explains that process.
How does making a will work in Scotland?
Anyone aged 12 or over has the legal capacity to make a will in Scotland, provided they are of sound
mind. A will must be in writing and signed by you at the end. A witness is not needed for formal
validity, but for a will to be presumed validly signed (often called self-proving), it should be
witnessed by one witness whose name and address are recorded. If the will runs to more than one sheet,
you should sign every sheet. A witness must be at least 16 and must know who you are. A solicitor can
make sure these formalities are followed.
Legal rights: who cannot be fully disinherited?
Scots law protects a spouse or civil partner and children from being completely left out. They can claim
legal rights from the moveable estate, which means everything except land and
buildings, such as money, investments, cars and personal belongings:
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A spouse or civil partner can claim one third of the moveable estate if there are children, or one
half if there are none.
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Children share one third of the moveable estate if there is a surviving spouse or civil partner, or
one half if there is not.
A person entitled to legal rights who is also left something in the will must choose between the two:
they cannot take both. Cohabitants have no legal rights and no protection from disinheritance.
What happens if there is no will?
If someone dies without a valid will (intestate), the Succession (Scotland) Act 1964 decides who
inherits. After debts are paid, a surviving spouse or civil partner has
prior rights to:
- the deceased's interest in the home, up to £473,000
- furniture and furnishings, up to £29,000
- a cash sum of up to £50,000 if there are children, or £89,000 if there are none
Legal rights are then paid, and the rest of the estate passes in a fixed order of relatives. Since 30
April 2024, a surviving spouse or civil partner inherits the remaining estate ahead of parents and
siblings where there are no children or other descendants. An unmarried partner does not inherit
automatically, though they may be able to apply to the court within six months of the death. For more on
this, see our family law solicitors in Glasgow guide.
How do powers of attorney work in Scotland?
A power of attorney lets you choose who can act for you if you lose capacity. It is governed by the
Adults with Incapacity (Scotland) Act 2000. A continuing power of attorney covers money
and property, and can start straight away or only on incapacity. A welfare power of
attorney covers personal welfare and health decisions, and can only be used once you can no longer make
those decisions yourself.
Anyone over 16 who has capacity can grant one. It must include a certificate signed by a practising
solicitor, a practising advocate or a registered medical practitioner who interviewed you immediately
before you signed and is satisfied that you understand what you are granting. The document must then be
registered with the Office of the Public Guardian before it can be used. Without a power of attorney, a
family member may need to apply to the sheriff for a guardianship order to make decisions for you.
What about trusts and inheritance tax?
A trust lets property be held and managed by trustees for the benefit of others, for example young
children or a family member who needs support. Scottish trust law is being modernised by the Trusts and
Succession (Scotland) Act 2024, which is coming into force in stages, so ask a solicitor how it affects
any trust you have or plan to set up.
Inheritance tax is a UK-wide tax collected by HMRC, not a Scottish tax. Broadly, there is normally no
tax to pay if an estate is below the £325,000 threshold, and the standard rate above it is 40%. Gifts to
a spouse, civil partner or charity are generally exempt, and the threshold can increase to £500,000
where a home passes to children or grandchildren. Rules change often, so take up-to-date advice.
When should I update my will?
Review your will after any major life event, such as marriage, separation, the birth of a child, a house
move or the death of someone named in it. Divorce matters especially: for deaths on or after 1 November
2016, a former spouse or civil partner is treated as having died before you unless your will says
otherwise. Our guide to divorce lawyers in Glasgow covers
separation more widely.
How do I choose a wills solicitor in Glasgow?
Check the solicitor holds a practising certificate using the Law Society of Scotland's Find a Solicitor
search, and look for regular private client work. Our guide on
how to choose a solicitor in Scotland has more detail.
Questions to ask at a first meeting:
- How much of your work is wills, powers of attorney and estate planning?
- How will legal rights affect what I want to leave, and to whom?
- Should I make continuing and welfare powers of attorney at the same time?
- Will you store the original will, and how will I get it back?
- Will you confirm the fee or basis of charging in writing?
What does a wills solicitor cost, and is legal aid available?
Law Society of Scotland rules require your solicitor to give you, in writing and at the earliest
practical opportunity, an outline of the work and either an estimate of the total fee or the basis of
charging. Ask whether a fixed fee is available for a will or power of attorney, and what it covers.
Advice and assistance from the Scottish Legal Aid Board can help pay for a solicitor's advice on any
matter of Scots law, depending on your finances, and you apply through a solicitor who does legal aid
work. A contribution may be payable.
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