Will an English will and energy of legal professional be legitimate in Scotland?
Julie Doncaster is a partner on Harper Macleod’s private banking team.
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Julie Doncaster, a partner on Harper Macleod’s private clients team, examines some fundamental differences in the laws of the two countries when a person dies or when making a will or considering disability issues.
In 2020, the Migration and Population Expert Group reported a steady increase in the migration of people from England to Scotland. Whether you’re into the scenic countryside or the fresh air, taking the time to review the status of your legal regulations can save you a lot of time and money in the long run.
In Scotland, the threshold for what is considered a valid will is much higher and very different from the criteria in England. An English will is not immediately accepted in a Scottish court and vice versa. It is important that you update your will when you cross the border so that your estate can be processed without additional cost or delay.
When a person dies, their executors must collect the deceased’s property, settle any debts, and distribute the estate according to the deceased’s will or, in the absence of a will, according to the laws of intestacy among the beneficiaries of the estate.
Once the executors have received details of an estate, they will apply to the Sheriff Court in Scotland for certification. In England, however, executors apply to the regional English probate office for approval of the estate. Often banks and other institutions only know the English criteria and can therefore make confusing and contradicting requirements with regard to the approval of real estate funds.
While there are similarities in the application process for confirmation and inheritance, Scottish law and English law differ significantly when it comes to the distribution of estates.
In Scotland, for example, spouses and children have legal rights, which means that they can have an inheritance claim even if they are not included in the will or if they believe that a will has not adequately provided for them. Such rights do not exist in England. To make a claim under English law, an applicant must file an application with the court within six months of the grant of the estate and meet strict criteria.
Powers of attorney
A Scottish Power of Attorney is generally considered to be more robust than an English one for several reasons:
A more in-depth review is done at the start, as a Power of Attorney is usually created by a lawyer who will have an in-depth discussion of the document with the evaluator to ensure they fully understand it.
It is crucial that a doctor or lawyer certifies that the scholarship holder is informed about the type and effect of the power of attorney, which powers he grants and to whom. The assessment will also determine whether the fellow is being overly influenced or pressured to act.
A power of attorney is also expressly mentioned in the powers of attorney granted by it. All of this is in stark contrast to the English system, where drafts of powers of attorney can be downloaded and filled out without professional involvement. There has been some public criticism of this English route in cases of vulnerable people being exploited. Fortunately, both England and Scotland have official bodies designed to protect a person who gives power of attorney.
Unlike Wills, English powers of attorney can be recognized in Scotland by attaching a certificate which can be found on the Scottish Office of the Public Guardian website.
Time to review?
It is recommended that you review your will every three to five years and after major life changes such as moving from England to Scotland to ensure that your will continues to meet your wishes.