In today’s world, it is increasingly common for individuals to have ties to more than one country - through property ownership, family connections, or work. For those with links to both the United States and Scotland, estate planning can become complex.
A recent question we received from a client was: If I already have a US will, do I need a Scottish will? In most cases, the answer is yes. Understanding why this matters can help avoid challenges further down the line.
Why jurisdiction matters
While a US will may be valid in Scotland in certain circumstances, relying on one document to cover assets in multiple jurisdictions can create practical and legal challenges. Each country has its own succession rules, tax regimes, and formalities. A single worldwide will may not necessarily achieve a client’s intended objectives and could lead to delays or disputes.
Domicile and residency
In Scotland, domicile determines which succession laws apply on death. Domicile is acquired at birth, however it can change if a person moves to another country with the intention of living there permanently.
Domicile is distinct from tax residency. UK inheritance tax (IHT) is now based on residence rather than domicile. Persons who have been UK tax resident for at least 10 of the last 20 years are subject to UK IHT on their worldwide assets, and this exposure can continue for up to 10 years after leaving the UK. UK-situs assets remain assessable to UK IHT regardless of residence. For US citizens, this creates a risk of double taxation, as they may also be liable for US estate tax on their worldwide estate. The US-UK Double Taxation Treaty can help mitigate double estate tax however, proactive planning is essential.
Forced heirship in Scotland
If a person dies domiciled in Scotland, their spouse or civil partner and children have an automatic claim to their “legal rights”, being a share of the worldwide net moveable estate (cash, investments, personal effects etc.), regardless of what any US will may say. This can amount to one third or one half of the net moveable estate for spouses, and one third or one half for children.
US clients should speak with a US attorney to determine whether similar forced heirship rules apply in the US.
Practical issues with one will
Even if a US will is recognised in Scotland, administering a cross border estate can be slow and costly. Executors may require Scottish confirmation (the equivalent of probate), which can be complicated, often requiring opinions from US attorneys on the validity of the US will.
Separate wills, one for Scotland and one for the US, can simplify administration and reduce risk. These must be carefully coordinated to avoid accidental revocation or conflicting provisions, often requiring collaboration between lawyers in both jurisdictions.
Scenario
Michael, a US citizen, has lived in Scotland for several years and owns a family home in Edinburgh, along with investments in both the US and the UK. He has a US will that covers his worldwide assets and assumes this is sufficient.
However, because Michael is now considered domiciled in Scotland, his children will have an automatic right to claim their legal rights, irrespective of his wishes under his US will.
If Michael dies without a Scottish will, his executors may face delays obtaining Scottish confirmation and navigating conflicting legal requirements. By putting in place a Scottish will for his Scottish assets and retaining his US will for US assets, Michael can seek to avoid conflict between the jurisdictions and this makes the estate administration process far smoother.
Other considerations
Cross-border planning often extends beyond wills. For example, powers of attorney are not automatically recognised internationally. While US powers of attorney are theoretically enforceable in the UK, in practice, institutions often require jurisdiction-specific documents. Therefore, where property is owned in Scotland, a Scottish power of attorney is advisable, alongside a US equivalent.
Best practice
Where assets exist in both Scotland and the US, advice should be sought in both jurisdictions. Coordinated wills and supporting advice will reduce risk, minimise tax exposure, and ensure smooth estate administration.
Brodies' personal team have vast experiences in working alongside US-qualified advisers to deal with personal matters where there are US and Scottish estate planning elements. For more information, please contact one of our wills and estate planning lawyers today.
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Senior Solicitor
