Making a will

What does this work involve?

A will is a document prepared, during your lifetime, that sets out what you want to happen, after your death, to anything that you own. This will be called “winding up your estate”. Many people don’t think they need a will, but you never know what the future holds. Although in Scotland a spouse or child can still claim something from your estate, even if they aren’t mentioned in your will (this is called a legal rights claim), a clear statement of your wishes can smooth the whole process, help to avoid arguments, and make sure that your family is provided for as you would like. You can also include other details, such as funeral arrangements.

You can make a will on your own (a single will) or make a joint or mirror will, which is usually done with a life-partner, where the intention is that all the assets are left in the first place to the surviving partner, and then, on their death, will pass to other named people.

You can name one or more executors who will manage the winding-up of your estate after your death. Your executor doesn’t have to be your partner, or even a relative. You should choose someone that you know has the time and ability to deal with this task. They do not need to have any personal connection to you. You might also want to name someone (who does not have to be the executor) to deal with your social media and other online presence.

A will can be changed at a later stage if your circumstances or wishes change. This can be done either by adding in a new paragraph or two to deal with any small changes (called a codicil), or by preparing a completely new will to replace the previous one.

It’s particularly important to make a new will after any major life changes for yourself or anyone else that you’ve named in your will. These changes could include marriage, divorce, death, selling or buying a new property, or significant financial events. It’s also a good idea to amend the part that names an executor if the person you originally named moves away, becomes seriously ill, or dies.

Your will needs to be kept safe, and you can ask your solicitor if they can store it for you.

Must I use a solicitor?

You don’t have to use a solicitor to draw up a will. However, it’s advisable to do so, because if you don’t meet any of the strict legal requirements, or if the language you used isn’t clear, your will might not be valid or achieve what you wanted. A solicitor can also tell you what options are open to you that will suit your circumstances.

A person making or changing a will must have "legal capacity"; many wills are set aside when this is in doubt. Legal capacity is different from a medical diagnosis that records any changes in mental capacity or function. Legal capacity means that the person making the will must be acting of their own free will, and be able to understand what the document is, why they are signing it, and what it will achieve. A solicitor might ask questions that can seem very personal, but this is part of their professional duty to make sure that they’re acting in your best interests. A solicitor can also speak to a medical professional to get their input.

Your solicitor might ask you if you also want to make a Power of Attorney. This is a separate document and is not a substitute for a will. Instead, it allows someone to manage your day-to-day finances and/or health decisions for you, during your lifetime, if you become unable to do so. It is prepared while you are still fully capable but will include details of a date or circumstance that will bring it into effect.

What should I do before my first meeting with a solicitor?

It's important to find a solicitor that you respect and trust. You can ask about their experience and expertise in this area of law. Many firms have information on their websites about this field of law, and some websites will also give the costs, to help you compare firms and decide who to visit. Some firms offer a first meeting at a reduced cost, and this can be useful if you want to keep your options open before you make a final decision.

Before you meet with a solicitor, it’s helpful if you can make a note of what you want to happen to your assets after your death. Listing everything (and having copies of documents if relevant) will help you to value your estate and help the solicitor to recommend the best options for you. The kinds of assets that you might want to list will include houses and land, vehicles, personal belongings, valuable collections, any businesses that you are involved in, digital assets, and any banking, saving and investment accounts. You should tell the solicitor if any of these are owned jointly with another person.

It’s also useful if you can provide at least details, but perhaps also copies of any other relevant documents. These could include any previous wills that you have made, details of any pre-paid funeral policies or your wishes for your funeral, financial information, any mortgage or security held over any property, and details of life insurance, annuity or pension policies.

You will need to provide details of any person or charity who you want to benefit in your will. You should make your solicitor aware of any potential debt claims against your estate, and ask them to explain legal rights claims to you. You might also want to name an executor, so you will need their details too. You need to bring some form of your own ID with you, as the solicitor must check this as part of their process. Finally, you need to tell your solicitor if you have any chronic or terminal health problems.

You may bring a friend or family member to your appointment. Ideally, you should let your solicitor know if you’d like to do that, before your first meeting. The solicitor will need to discuss some things with you alone, so that anyone who comes with you may be asked to leave the room for part of the meeting.

You should tell the solicitor if you have any concerns about your personal safety, if anyone has tried to persuade you to include them in your will or to be a witness, and if you are worried that you don’t understand something that another person has told you. Whatever you tell your solicitor is confidential, but they do need to know if someone is trying to influence you to do something that you do not want.

What will it cost?

It’s common for solicitors to charge a fixed fee for drafting a will, but your solicitor may choose to charge differently, particularly if your circumstances and will are more complicated. You should always double-check this point before confirming the instructions. There might be an additional charge for storing the will.

Can I get legal aid?

Legal aid is not generally available for wills, although in limited circumstances you can check with the Scottish Legal Aid Board if you qualify for an "advice and assistance" contribution.

Some solicitors take part in “will month” or work with charities where they don’t charge fees, but will suggest that the person making a will makes a donation to the charity roughly equivalent to their normal fees. You can find out more from the WillAid website.

How long will it take?

At your first meeting, your solicitor will have to ask a lot of questions and will take notes. Don’t be concerned if they ask similar questions again at a later stage because they must be absolutely sure about their instructions.

The solicitor will tell you how long they will take to draft the will so that you can check it, make any alterations, and sign it. If they still need more information, you should agree what must still be done, and set a timeframe for the information to be provided.

What happens next?

We suggest you set your next appointment, to sign or discuss any changes to the draft, to keep things on track. Once you instruct a solicitor, they will send you their terms of business, setting out what they will do, how they will charge, what is and what is not included in the fee, and what they expect from you. It will also tell you how to raise a concern or complaint. It’s very important to read this carefully and keep it safe.

Once you get the draft of your will, you should also read this very carefully and ask the solicitor to explain anything that you don’t understand, or that you think might not be exactly in line with your instructions. You’re not expected to be an expert, and you have every right to understand fully what you are signing.

You should only sign if you are completely happy that the document is correct, and you feel comfortable about signing it. It’s important that you and your witnesses carefully follow any instructions about the signature.

After the will has been signed and witnessed it must be kept safe. If the solicitor can store it for you, you should confirm what they will charge for doing this, and keep a note of where it is stored with your other personal documents. If you want to keep a copy of your will yourself, it should be clearly marked as a copy and not the original.

Finally, remember that you can change all or part of your will at any time, as outlined above. If you do decide to do this, it is even more important to get help from a solicitor who can make sure that you don’t cancel out anything by mistake from your original will, and make sure that the changes are correctly recorded and witnessed.