Making a Will and putting Powers of Attorney in place are among the most important things any family can do, yet most of us put them off indefinitely. This Mother’s Day, Sunday 15 March, gives families a natural moment to have the conversation that so many have been avoiding. At Pomphreys, we believe that protecting the people you love is one of the most meaningful gifts you can ever give, and it has nothing to do with flowers or chocolate.
Mother’s Day is a time to appreciate the people who mean most to us. We buy cards, arrange lunches, send flowers, and do our best to show our appreciation. But there is another kind of gift, one that costs less than a bouquet and lasts a lifetime. It is the gift of certainty.
If your parents do not have a valid Will, or if they have never set up Powers of Attorney, they are not alone. The majority of Scottish families have not put these documents in place. That does not make it any less urgent. A few quiet conversations and a visit to a solicitor could make an enormous difference to your family’s future. This Mother’s Day, consider whether that is a conversation worth having.
Why so many families put off the conversation
Nobody likes thinking about death or incapacity. It is human nature to assume that these things are some way off, that there will always be more time to sort it out. But putting off making a Will or setting up a Power of Attorney is not a neutral decision. It is a decision with real consequences, and often those consequences fall on the people you love most.
There is also a common assumption that estate planning is only for the wealthy, or that it is complicated and expensive. In practice, making a Will in Scotland is a straightforward process. A Power of Attorney can usually be arranged in a matter of weeks. The barrier for most families is simply getting the conversation started, and finding the right moment to do it.
Mother’s Day provides exactly that moment. It is a day already dedicated to family, appreciation, and care. Raising the subject of Wills and Powers of Attorney does not have to be morbid. Framed in the right way, it is an expression of love and responsibility. The families who have these conversations and take these steps are the ones who are properly protected when life takes an unexpected turn.
What happens if a parent dies without a Will in Scotland?
Dying without a valid Will is known as dying intestate. In Scotland, this triggers a rigid set of legal rules that determine who inherits your estate. The outcome may not reflect your parent’s wishes at all.
Under Scottish intestacy rules, the estate is distributed according to a legal hierarchy based on Prior Rights and Legal Rights. A surviving spouse or civil partner has certain Prior Rights, including a right to the family home up to a specified value, furniture and effects up to a limit, and a financial provision from the remaining estate. After Prior Rights are satisfied, Legal Rights allow a spouse or civil partner and any children to claim fixed proportions of the moveable estate.
The most significant gap for many modern families is this: an unmarried partner has no automatic inheritance rights in Scotland, regardless of how long the relationship has lasted. If your mother has a long-term partner and dies without a Will, that partner could inherit nothing. Stepchildren are similarly excluded. Close friends, godchildren, and causes your parent cared about deeply also have no claim unless they are named in a valid Will.
Without a Will, there is no named executor to take charge of the estate. This can cause delays and complications at an already difficult time. The process is also typically more costly than administering an estate where a clear Will is in place.
What is a Power of Attorney and why does it matter?
A Power of Attorney is a legal document that allows a person to appoint someone they trust to act on their behalf. In Scotland, Powers of Attorney are governed by the Adults with Incapacity (Scotland) Act 2000 and are designed to provide protection and continuity if someone loses the mental capacity to manage their own affairs.
The importance of having a Power of Attorney in place is hard to overstate. Without one, if your parent were to suffer a stroke, develop dementia, or become seriously ill, your family would have no automatic legal authority to access their bank accounts, manage their property, pay their bills, or make decisions about their care. Even as a close family member, you cannot simply step in and take over. You would need to apply to the court for a guardianship or intervention order under the Adults with Incapacity (Scotland) Act 2000, a process that is considerably more time-consuming, stressful and expensive than having a Power of Attorney in place from the outset.
A Power of Attorney must be set up while the person granting it has the necessary mental capacity to understand what they are signing. That is one of the most important points families need to understand. It cannot be arranged after the fact. Getting it in place while your parent is healthy and capable is the only option.
The difference between a Continuing and a Welfare Power of Attorney
In Scotland, there are two distinct types of Power of Attorney, each covering different aspects of a person’s life. It is common to put both in place at the same time, and they can be granted in favour of the same person or different people, depending on your parent’s preferences.
A Continuing Power of Attorney (also known as a financial Power of Attorney) covers property and financial matters. This allows the appointed attorney to manage bank accounts, pay bills, deal with investments, buy or sell property, and handle any other financial transactions on the granter’s behalf. The word ‘continuing’ refers to the fact that it continues to be effective even if the granter loses capacity, which is what makes it so valuable.
A Welfare Power of Attorney covers decisions about personal welfare. This includes where a person lives, what medical treatment they receive, what care arrangements are made for them, and other day-to-day welfare decisions. A Welfare Power of Attorney only comes into effect when the person has lost capacity to make these decisions themselves.
Both types of Power of Attorney must be signed in the presence of a solicitor or other qualified professional who can certify that the granter understands what they are signing and is not acting under any undue pressure. This safeguard is an important part of the Scottish system and protects against misuse.
How to start the conversation with your parent or family
Raising the subject of Wills and Powers of Attorney with a parent can feel awkward, particularly if the topic of death or illness has never come up naturally in your family. But it does not have to be a difficult conversation. The way you approach it matters a great deal.
Starting from a place of care rather than concern tends to work best. Rather than saying ‘We need to talk about what happens when you die,’ you might say something like: ‘I want to make sure you are properly protected and that things are straightforward for all of us. Have you ever thought about getting a Will in place?’ Framing it as something you want to do for peace of mind, rather than something urgent or alarming, takes the pressure off.
If your parent is resistant, it can help to share a real-life example. Many families have experienced the difficulties that arise when someone passes away without a Will, or when a parent loses capacity and nobody has the legal authority to help. These stories are more persuasive than any statistic.
You might also offer to go with them. Attending a solicitor’s appointment together, or helping to research the process, can remove the practical barriers that stop many people from taking the first step. Sometimes the only thing standing between a family and the protection they need is one conversation, followed by one phone call.
Making it easy: what the process involves at Pomphreys
Many people imagine that making a Will or setting up a Power of Attorney is a complicated, time-consuming process. In practice, working with an experienced solicitor makes it straightforward.
At Pomphreys, the process usually begins with an initial conversation, either by phone or in person, where we take the time to understand your parent’s circumstances, their wishes, and what they would like to put in place. There is no pressure and no jargon. We explain the options clearly and make sure everything is fully understood before any documents are prepared.
Once instructions have been taken, we prepare the documents to reflect your parent’s wishes precisely. For a Will, this includes dealing with how the estate is to be distributed, who is to be appointed as executor, and any specific bequests they would like to make. For Powers of Attorney, we ensure the correct type is put in place, properly certified, and registered with the Office of the Public Guardian in Scotland, which is a requirement for Powers of Attorney to be effective.
The whole process can usually be completed within a few weeks, and in many cases sooner. For families where one or both parents is elderly or in poor health, we always do our best to accommodate appointments promptly.
Why choose Pomphreys?
Pomphreys has been helping families across Wishaw, North Lanarkshire and the surrounding area for generations. Our private client team has the knowledge and experience to guide you through the process of making Wills and setting up Powers of Attorney in a way that is clear, straightforward, and tailored to your family’s needs.
We understand that these are not easy conversations to start, and that taking action can feel like a big step. Our approach is always warm, patient, and practical. We are here to explain your options in plain language, answer your questions honestly, and help you feel confident that everything is properly in order.
If you are thinking about raising this subject with your parent this Mother’s Day, or if you would like to arrange for your own Will or Powers of Attorney to be put in place, we would be very happy to help.
Speak to Pomphreys today to arrange a friendly, confidential chat about what you need. You can reach us on 01698 373365.
Alternatively, use our online contact form and we will get back to you as soon as possible.
Frequently Asked Questions about Making a Will and Power of Attorney in Scotland
What happens if my parent dies without a Will in Scotland?
If your parent dies without a valid Will, their estate is distributed according to Scotland’s intestacy rules. The law sets out a fixed hierarchy based on Prior Rights and Legal Rights, which prioritise a surviving spouse or civil partner and children. However, unmarried partners have no automatic entitlement, regardless of the length of the relationship. Stepchildren and other individuals your parent may have wished to provide for are also excluded. Without a Will, your parent also cannot specify who they would like to act as executor, which can add complexity and delay. Making a Will is the only way to ensure an estate is distributed according to your parent’s actual wishes.
Can a Power of Attorney be set up if someone is already unwell?
It depends on whether the person still has the mental capacity to understand what they are signing. A Power of Attorney can be granted by someone who is physically unwell, or who has an early diagnosis of a condition such as dementia, provided they still have sufficient mental capacity to understand the document and the powers they are conferring. The solicitor involved will make an assessment of capacity as part of the process. If capacity has already been lost, it is too late to grant a Power of Attorney, and the family would need to apply to the court for a guardianship or intervention order instead, which is a considerably more complex process. This is why acting sooner rather than later is so important.
Does a Scottish Will cover assets elsewhere in the UK?
A validly executed Scottish Will is generally recognised across the rest of the UK. For moveable assets such as money, investments and personal possessions, Scots law will apply if your parent was domiciled in Scotland. However, heritable property located in England or Wales is governed by the law of that jurisdiction, so the rules that apply may differ from those in Scotland.
There is also a procedural point worth noting. In Scotland, authority to administer an estate is granted through Confirmation. Where assets are held in England or Wales, it may be necessary for that Confirmation to be resealed by the courts there before it can be used to ingather those assets.
If your parent holds property or significant assets outside Scotland, it is advisable to raise this with a solicitor. Depending on the circumstances, a single Will may be sufficient, or separate Wills for different jurisdictions may be the more practical approach.
How often should a Will be reviewed or updated?
As a general guide, it is worth reviewing a Will every three to five years, or after any significant life event. Circumstances that should prompt a review include marriage (which does not revoke a Will in Scotland, unlike in England and Wales, but which may change who you wish to benefit), divorce (which has automatic legal consequences for any provisions in favour of a former spouse), the birth of a child or grandchild, the death of a beneficiary or executor, significant changes in assets or financial circumstances, or if a beneficiary’s own circumstances change in a way that affects how you wish to provide for them. An out-of-date Will may not reflect your parent’s current wishes and could lead to unintended outcomes.
This article is by Sarah Lynch
Sarah Lynch, Managing Partner
Sarah Lynch is the Managing Partner at Pomphreys. Sarah studied at Dundee University, achieving a 2:1 LLB Honours degree in Scots Law. She then moved back to Glasgow to study the Diploma in Legal Practice, being one of only a small number of students to be offered a funded position for academic excellence achieved during the LLB. Sarah then secured a traineeship concentrating on Personal Injury before deciding to broaden her scope of work to all civil litigation. We recently caught up with Sarah to discuss her role in Pomphreys.
Tel: 01698 373 365
Email: sl@pomphreyslaw.com
