Wills

Making a Will in Scotland

A Will is one of the most important documents you will ever sign. Without one, your estate passes under the rules of intestacy, which may not reflect your wishes, and the process of dealing with your affairs becomes considerably more difficult for those you leave behind.

Our solicitors will take the time to understand your circumstances and prepare a Will that reflects exactly what you want. Whether your estate is simple or includes complex elements such as business assets, property in multiple countries, previous relationships, stepchildren, or beneficiaries who require continuing care due to disability, we can ensure your Will is tailored to your situation.

We offer a fixed fee for straightforward Wills, and a discounted fee when a couple wish to prepare mirror Wills together.

Inheritance Tax Planning

Inheritance Tax Planning in Scotland

Inheritance tax is charged at 40% on the value of your estate above the nil rate band, currently £325,000. An additional residence nil rate band of up to £175,000 may also be available where residential property passes to direct descendants, potentially allowing a combined threshold of £500,000 per individual or £1,000,000 for a married couple or civil partners.

With property values in Dumfries and Galloway having risen significantly in recent years, more estates are being caught by inheritance tax than ever before. Early planning can make a significant difference.

Walker & Sharpe can advise you on inheritance tax mitigation strategies, including the use of trusts, gifts, and exemptions, to help protect your family’s assets and preserve wealth for future generations.

Executries

Estate Administration (Executries) in Scotland

When someone dies, their estate — their property, money, and possessions — must be gathered, administered and distributed. In Scotland, this process is known as an executry.

We know that dealing with legal formalities is rarely welcome at a time of loss. Our role is to take as much of the burden from you as possible, communicating clearly at every stage and ensuring that the estate is administered efficiently and correctly.

Our executry services include:

• Advising on the appointment of an executor and the terms of the Will (or the rules of intestacy where there is no Will)
• Applying for Confirmation (the Scottish equivalent of probate) from the Sheriff Court
• Valuing and ingathering the estate
• Corresponding with banks, investment providers, HMRC and other third parties on your behalf
• Preparing estate accounts and distributing the estate to beneficiaries
• Advising on any inheritance tax liability and completing the relevant returns

Whether the estate is modest or substantial, we will guide you through every step.

Legal Rights Claims

Legal Rights Claims in Scotland

Scots law protects certain family members from being entirely disinherited. A surviving spouse, civil partner, or child of the deceased has automatic legal rights to claim a portion of the moveable estate, regardless of the terms of a Will.

If you believe you may have a legal rights claim, or if you are an executor or beneficiary dealing with such a claim, Walker & Sharpe can advise you on your position and help resolve the matter.

Cohabitant claims

Cohabitant Claims on Death of a Partner

If you were living with a partner who has died but were not married or in a civil partnership, you may be entitled to apply to the court for financial provision from their estate under the Family Law (Scotland) Act 2006. This is a time-limited right — you must apply within six months of the date of death — so it is important to seek advice promptly.

Walker & Sharpe can advise you on whether you have a claim and assist you through the application process.

Trusts

Trusts in Scotland

A trust allows you to set aside assets, during your lifetime or on your death, for the benefit of others, administered by trustees you appoint. Trusts are a versatile planning tool and can be used for a variety of purposes, including:

• Providing for children or grandchildren until they reach a specified age
• Protecting assets for a beneficiary who has a disability or has lost capacity
• Reducing or mitigating inheritance tax liability
• Protecting family assets on remarriage

Our solicitors can advise on the most appropriate type of trust for your circumstances and ensure it is correctly established and registered with HMRC where required.

Powers of Attorney

Powers of Attorney in Scotland

A Power of Attorney (POA) is a legal document in which you appoint a trusted person — your Attorney — to manage your financial and/or welfare affairs on your behalf if you lose capacity to do so yourself.

Under the Adults with Incapacity (Scotland) Act 2000, there are two types of Power of Attorney:

• A Continuing Power of Attorney covers your financial and property affairs and can take effect immediately or only on incapacity.
• A Welfare Power of Attorney covers decisions about your personal welfare, health care, and day-to-day living, and can only be used when you no longer have capacity.

Both can be combined in a single document, and both must be registered with the Office of the Public Guardian (Scotland) before they can be used.

A Scottish Power of Attorney is a different document from an English one and will not be recognised by Scottish institutions without proper registration. If you have previously granted a Power of Attorney in England and Wales and have since moved to Scotland, or hold assets in both jurisdictions, please speak to us about whether your arrangements remain effective.

It is important to grant a Power of Attorney while you still have capacity. Once capacity is lost, a Power of Attorney can no longer be granted and a court application for Guardianship will be required instead.

Guardianship

Guardianship and Intervention Orders in Scotland

If someone has lost the ability to make decisions about their own affairs due to dementia, brain injury, stroke, learning disability, or another condition affecting mental capacity and they do not have a Power of Attorney in place, a court order will be required before anyone can legally act on their behalf.

Under the Adults with Incapacity (Scotland) Act 2000, the two main types of order are:

• A Guardianship Order, which appoints a Guardian (usually a family member or a professional) to manage the adult’s affairs on an ongoing basis. A Guardianship Order can cover welfare matters, financial matters, or both.
• An Intervention Order, which authorises a one-off action, such as selling a property, without appointing an ongoing Guardian.

Applications are made to the Sheriff Court and must be supported by medical reports confirming the adult’s incapacity. The process is supervised by the Office of the Public Guardian (Scotland) and, for welfare matters, the Mental Welfare Commission for Scotland.

Our experience in Guardianship

Walker & Sharpe has extensive experience in Guardianship applications across Dumfries and Galloway and the wider region. Our solicitors regularly act for families, carers, local authorities and other organisations navigating this process, and we are frequently appointed by the court as professional Guardians where an independent appointment is appropriate.

We regularly assist with:

• Welfare Guardianship for adults with dementia or acquired brain injury
• Financial Guardianship where the adult’s estate requires ongoing management
• Combined welfare and financial Guardianship applications
• Guardianship for young adults with significant learning disabilities who have reached the age of 16 and whose parents require legal authority to continue managing their affairs
• Intervention Orders for one-off transactions such as property sales
• Renewal and variation of existing Guardianship Orders
• Advice to existing Guardians on their duties and reporting obligations to the OPG