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Will Writing

• What is Confirmation in Scotland — and is it the same as Probate?

  Confirmation is the Scottish equivalent of Probate in England and Wales. It is the legal process by which an executor is formally authorised by the Sheriff Court to administer a deceased person's estate. Without Confirmation, most banks and financial institutions will not release assets. If the deceased left a will, the executor named in it applies for Confirmation. If there is no will, a family member can apply to be appointed as executor-dative. Hunter Legal Services can guide you through the Confirmation process from start to finish.

• What happens if I die without a will in Scotland?

  If you die intestate (without a valid will) in Scotland, your estate is distributed under the Succession (Scotland) Act 1964. Your spouse or civil partner and children have automatic "prior rights" and "legal rights" (known as 'legitim') over your estate regardless of any will — but without a will, the remainder passes under a strict statutory order. Unmarried partners have no automatic entitlement under Scots law, regardless of how long you have lived together.

• How often should I update my will?

  You should review your will after any major life event: marriage (which revokes a previous will in England and Wales), divorce, the birth of a child or grandchild, a significant change in assets, or the death of a beneficiary or executor. As a general rule, reviewing your will every three to five years is good practice.

• Can I leave my property to whoever I choose in Scotland?

  In Scotland, the answer is more restricted than elsewhere in the UK. Scots law gives your spouse or civil partner and your children automatic "legal rights" (known as 'legitim') over your estate — your children are entitled to a share of your moveable estate regardless of what your will says. This cannot be overridden. Beyond these legal rights, you are generally free to leave the remainder of your estate to whoever you choose. A solicitor can advise you on how to structure your will to work within these rules and reflect your wishes as closely as possible.

Probate

• What is probate and when is it needed?

  Probate is the legal process of administering a deceased person's estate. It involves obtaining a Grant of Probate (if there is a will) or Letters of Administration (if there is no will), which gives the executor or administrator legal authority to deal with the estate. Probate is typically required when the deceased owned property in their sole name, or held significant assets with financial institutions that require it.

• How long does probate take?

  A straightforward probate can take six to twelve months from the date of death to final distribution. More complex estates — those involving property sales, disputes, overseas assets, or inheritance tax — can take considerably longer. The Probate Registry currently has processing times of several months for applications, which adds to the overall timeline.

• Can I deal with probate myself?

  You can apply for probate yourself (known as a personal application), but many executors choose to instruct a solicitor, particularly where the estate is complex, involves inheritance tax, or where there is any risk of dispute. Errors in the probate process can result in personal liability for the executor, so professional guidance is often worthwhile.

Trusts

• What is a trust and how does it work?

  A trust is a legal arrangement where assets are held by one or more trustees for the benefit of named beneficiaries. The person who creates the trust (the settlor) transfers assets to the trustees, who manage them according to the terms of the trust deed. Trusts can be created during your lifetime (lifetime trusts) or on death through your will (will trusts).

• Can a trust protect my assets from care home fees?

  Property protection trusts are designed to protect the family home after first death so it cannot be used to pay for care fees or be at risk of the surviving spouse re-marrying. The surviving spouse retains the use of the property during their lifetime, and when they die, the beneficiaries become completely entitled to the property. Probate trusts can also be created during your lifetime, so you can protect assets like the family home against care fees or future divorce settlements before you die. A lifetime trust can also help avoid probate delays, meaning that your loved ones will have access to the trust assets when they are most needed.

• What is a discretionary trust?

  A discretionary trust gives trustees the power to decide how to distribute income and capital among a class of beneficiaries, rather than specifying fixed shares. This flexibility makes them useful for providing for beneficiaries whose needs may change over time — for example, a vulnerable adult or a child who may not yet be ready to manage a large inheritance.

Inheritance Tax

• What is the inheritance tax threshold in the UK?

  The standard nil-rate band is £325,000 per person (2024/25). Anything above this is taxed at 40%. Married couples and civil partners can transfer their unused nil-rate band to each other, potentially giving a combined threshold of £650,000. An additional residence nil-rate band of up to £175,000 per person may apply when a main residence is left to direct descendants.

• What gifts are exempt from inheritance tax?

  Several gifts are exempt from IHT: the annual exemption (£3,000 per year), small gifts (up to £250 per person per year), gifts on marriage (up to £5,000 from a parent), gifts to charities, and gifts to a spouse or civil partner. Potentially Exempt Transfers (PETs) — larger gifts made during your lifetime — become fully exempt if you survive seven years from the date of the gift.

• Can I reduce my inheritance tax bill through my will?

  Yes. Careful will drafting can make use of available exemptions and reliefs, including leaving assets to a surviving spouse (exempt from IHT), charitable legacies (which can also reduce the IHT rate to 36% if 10% of the net estate is left to charity), and structuring trusts to make use of nil-rate bands. Business Property Relief and Agricultural Property Relief can also significantly reduce IHT on qualifying assets.

• When does inheritance tax have to be paid?

  Inheritance tax is generally due six months after the end of the month in which the person died. Interest accrues on unpaid tax after this date. In practice, IHT often needs to be paid before probate is granted — which can create a cash flow challenge, as the estate's assets may not be accessible until probate is obtained. We can advise on strategies to manage this.

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