Flexible working practices combined with the appeal of the Highlands have made the region a viable option for more people living south of the border who wish to relocate.
If you are thinking of moving, or have already done so, what should you bear in mind for your will and estate?
Scotland has a different legal system to England and while there are many similarities, there are important differences, particularly in relation to the law of succession.
Is my English will still valid?
There is a reciprocal agreement between England and Scotland on wills. If you made a valid will while resident in England, this will be recognised by a Scottish court - although it may be necessary to obtain an opinion on validity from an English-qualified lawyer.
Which law governs my estate?
The law of the country where you are domiciled at death will govern the administration and distribution of your estate.
Domicile is a difficult concept, but it is generally the country with which you have a permanent connection. If you relocate to Scotland intending to make it your permanent home, it is likely you will acquire a Scottish domicile. However, if you intend to return to England, you will probably retain your English domicile.
Domicile is not always straightforward, and you should take advice if you are unsure about your status.
Do I need an English will and a Scottish will?
Not necessarily. As a matter of law in both England and Scotland, the law of the land where you are domiciled will govern the moveable assets in your estate, no matter where they are located. Moveable property is everything except land and property. If you are domiciled in Scotland but own a flat in England, English law will cover the flat. If you have an English bank account though, Scots law will cover it.
That said, if you intend to remain in Scotland permanently, you should consider putting in place a will that complies with the requirements of Scots law.
Who will succeed to my estate?
Scots law differs from English law in a couple of important ways.
The concept of legal rights applies in Scotland but not in England. That means you cannot completely disinherit your spouse and/or children in Scotland. They are entitled to a proportion of your moveable assets, even if you are estranged.
There is no similar concept in England, although family members can apply for an equitable distribution in their favour. However, the outcome is at the discretion of the court.
Furthermore, if you were to die domiciled in Scotland without making a will, or if your existing will is found to be invalid, your estate will be distributed according to fixed rules setting out the priority of different family members. This may not align with your wishes so the solution is to make a will and take professional advice to make sure it is valid.
Note that the age at which a minor can inherit assets is 16 in Scotland, and 18 in England. You can insert suitable trust provisions to delay this though, if you consider the set age to be too young.
Is my English power of attorney recognised in Scotland?
In theory, yes – in practice, sometimes not. While there is an agreement that powers of attorney created in England or Scotland be recognised in either jurisdiction, different institutions often have their own requirements, and they can be quite inflexible.
Rather than encounter any difficulties later on, the safest option is to make a power of attorney in each jurisdiction, and to seek advice to ensure the two deeds sit together.
As with any major life change, it is worth reviewing your will to make sure it still adheres to your wishes after your move. If you are in any doubt, seek advice from a wills lawyer experienced in dealing with cross border estates.
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