Many of you will have watched a TV show or film where the family or friends of a deceased meet in the lawyer’s office for “the reading of the Will”, often with dramatic revelations and surprises about the nature of the estate and who inherits it. In Scotland it is usually the executors named in the Will who have the initial meeting with the lawyers. Often, but not always, they are also beneficiaries of the estate. The meeting is usually much less dramatic as, in the majority of cases, the deceased is likely to have discussed the Will with his or her family during their lifetime.
While the testator is alive their signed Will is normally held by their solicitor. Unlike Powers of Attorney, Wills are not registered during lifetime, so until the testator dies no-one is entitled to see their Will.
Strictly speaking only the executors are entitled to read the Will after someone’s death. The deceased appoints executors to administer their estate and distribute this to the beneficiaries named in the Will. In practice executors usually instruct a solicitor to deal with the administration of the estate on their behalf, so the solicitor will also need to read the Will, in their capacity as agents for the executors.
Whilst a beneficiary can request to see a copy of the Will the executors are under no obligation to provide them with a copy. However the executors, or solicitor dealing with the estate, will usually disclose the extent of a beneficiary’s entitlement to the estate. The executors do not need to provide any information about any other beneficiary’s interest.
This can cause anger and upset, especially when someone is to receive less than anticipated, or has been excluded from the Will altogether. In some cases they may try to challenge the validity of the Will.
The Will is normally registered in the Books of Council and Session with Registers of Scotland following the death, and an Extract copy obtained. At this time anyone who wishes to obtain a copy of the Will can contact Registers of Scotland and pay to obtain a copy.
When making the application for the Grant of Confirmation (Confirmation is the legal document granted by the court which gives the executors the legal authority to ingather the estate and distribute this to the beneficiaries) the Extract or original Will is lodged with the Sheriff Court. Once Confirmation is granted the Grant of Confirmation (which includes an inventory of the assets of the estate) and Will are recorded in the court books, which are a public record. Again, at this stage anyone who wishes to obtain a copy of the Will, and Grant of Confirmation, can do so.
Copies can be obtained by contacting the Sheriff Court where Confirmation was granted, providing details of the deceased, including their date of death and the date Confirmation was granted (if known). The Sheriff Clerk will charge a fee for searching the records and producing a copy of any documents requested.
The deceased’s children, spouse or civil partner may request a copy of the Will, even if they are not named as beneficiaries. In Scotland your children, spouse or civil partner, are protected from disinheritance. If you die leaving moveable estate your children, spouse or civil partner have an automatic entitlement to share in your estate, even if your Will does not make provision for them. This is known as Legal Rights.
Your children are entitled to a one-third share of the moveable estate if there is a surviving spouse or civil partner, or a one-half share if there is no spouse or civil partner. Similarly a spouse or civil partner is entitled to Legal Rights equal to a one-third share if there are also surviving children or a one-half share if there are no children.
A child, spouse or civil partner can claim their Legal Rights or choose to accept the terms of the Will but cannot do both. Therefore the executors, when advising them of their claim to Legal Rights, would normally disclose the extent of their entitlement under the will, if any.
Jennifer Gray is a Senior Executry Paralegal and deals with all aspects of executry administration and related tax matters. If you have any questions about this article or the issues covered here, please complete our contact form or call us on 0131 225 1200.
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