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Will -vatAre you worried about what will happen to your assets if you die without a will? As we get older, many of us worry about how we can provide for our family. The only way to have your assets shared according to your wishes is to make a will. A will may also include specific funeral instructions. Having a valid and up-to-date will means your wishes are respected after you're gone.

Making a will also makes winding up an estate quicker, easier and cheaper. It can also reduce inheritance tax, the tax which is payable out of your estate on death.

A will can also be used to appoint guardians to your children in the event that you were to die before they reach the age of 16. This can be a great source of worry for many parents and putting an appropriate provision in your will can provide peace of mind that your children can be looked after in such an event.

Scottish law on wills, trusts and executries differs from English law. For instance, the term 'probate' is not used in Scots law. Probate is known in Scotland as confirmation. Application for confirmation is made to the local Sheriff Court, through the Sheriff Clerk. Click here for assistance in applying for confirmation.

Writing a valid will

In order to be valid, your will must follow meet certain criteria. You must be legally capable of making a will. That is to say that you must be of sound mind and understand what you are doing. All the more reason to make one as early as possible.

The will must be in writing. How the will is written is not important. It can be in ink, pencil or typewritten. The will must also be signed on every page and at the bottom of the last page by the person making it, and their signature must be witnessed by one other person.

Altering a will

It is possible to add instructions to a will, to revoke a will and to alter a will. Again, there are specific legal requirements for each of these actions which is why it is worth consulting a wills solicitor. Sections can be added to, or amendments made to, an existing will, known as a codicil. Adding a codicil to a will does not replace the will, it simply makes amendments or additions to your existing will. So, for instance, you could add a codicil to include a family member who was not born at the time the original will was written.

Living wills

Sometimes adults wish to make to make provision for the type of medical treatment they would like to receive, or not receive, in later life. For instance, it can include instructions about what type of medical treatment (if any) you are to be given if incapacitated. This can be done in a document often referred to as a “living will” or an “advanced medical directive”. This is not strictly speaking a will as it is intended for using during the person’s lifetime, rather than on death and it relates to their personal welfare, rather than their assets.

Mirror or joint wills

When couples make wills which mirror the terms of one another (i.e. the terms are identical but in reverse), these are often referred to as “mirror wills”. The survivor of a couple may change their own will after the first party has passed away.

Joint or mutual wills, on the other hand, are whereby the wills are intended to irrevocable, and will bind the surviving partner, even after the first party has died. Joint and mutual wills therefore have long standing consequences which must be carefully considered before proceeding and professional advice should be sought before entering joint or mutual wills.

lindsay-maclean
Lindsay Maclean
Partner, Head of Personal Law
Get in touch with me when you need reliable legal advice on any aspect of Wills & Estate planning, including powers of attorney, will writing, financial planning and executries.
lindsay.maclean@gibsonkerr.co.uk
Edinburgh: 0131 208 2260
Glasgow: 0141 628 0656
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