How do you find out if someone left a will in Scotland?

When someone dies, one of the first questions for the family is whether they left a will. The answer decides who the executor is and who inherits. If there is a valid will, it governs the estate. If there is not, the rules of intestacy apply instead. Because making a will in Scotland does not involve lodging it anywhere, the will could be in a drawer at home, in a solicitor's safe, or with a bank. Here is how to track it down.

Step one: look through the person's papers

Most people keep their important papers in one place. Look carefully through:

• desks, filing cabinets, drawers and boxes of personal papers;
• a home safe or locked box, and the pockets of an old briefcase or handbag;
• correspondence from a solicitor, such as an invoice or a letter about a will, a power of attorney or a house purchase;
• bank statements, which may show a payment to a solicitor or a will writing company;
• a note of where the will is kept, which people sometimes leave with their birth certificate, pension papers or funeral plan.

If you find a letter from a solicitor, that firm is a strong lead even if the letter is about something else, because people often use the same firm for their will as for their house.

Step two: ask the family and close friends

Ask close relatives, friends, and anyone the person might have named as an executor. People often tell a trusted family member where their will is kept, or give them a copy. A copy is not enough on its own, but it usually shows which solicitor prepared the will and when. Our guide on who is entitled to see a will explains who can see it once it is found.

Step three: contact any solicitor the person used

In Scotland, it is common for the solicitor who prepares a will to keep the signed original in safe storage and give the client a copy. So the most likely place to find the original is with that solicitor, even if the firm has since changed its name or merged with another.

• Write to the firm with a copy of the death certificate, explain your connection to the person, and ask whether they hold a will or other papers.
• If the firm has closed, the Law Society of Scotland can often tell you which firm took over its files.
• If you do not know which solicitor the person used, local firms near where they lived, or where they used to live, are a sensible place to start.

A solicitor holding a will should release it to the executor named in it, or to the executor's own solicitor. If you are not the executor, the firm may tell you that a will exists and who the executor is, and then deal with that person.

Step four: search the Books of Council and Session

Scotland does have an official public register where a will can be recorded: the Register of Deeds in the Books of Council and Session, kept by Registers of Scotland. When a will is registered there, the original is kept permanently and the register can issue an official extract, which can be used in place of the original.

You can request a search online through the Registers of Scotland copy deeds service. It helps to have the person's full name, any former names, their last address and their date of death. A search that finds nothing does not prove there is no will. It only tells you that no will was registered in that name.

Other places a will might be

• The person's bank. Some banks used to offer will writing or safe custody services. Ask whether they hold a will or a safe deposit box in the person's name.
• A will writing company. If the person used one, it may hold the original in storage.
• Private will registers. Some solicitors and will writers record wills on a private UK wide register, such as the National Will Register, which offers a paid search. It only covers wills that someone chose to record there.
• Sheriff court books. Some older Scottish deeds were registered in the books of a sheriff court rather than the Books of Council and Session. This is rare for recent wills, but worth considering for an older will.
• Elsewhere in the UK. If the person lived in England, Wales or Northern Ireland at some point, they may have made a will there. England and Wales have their own arrangements, and a will made there can still be valid in Scotland.

What if you only find a copy?

To apply for Confirmation, the sheriff court needs the original signed will, or an extract from the Books of Council and Session if it was registered. A photocopy, a scan or an unsigned draft is not enough.

If the original has been lost, the law starts from a presumption. Where the will was last known to be in the person's own possession and cannot now be found, it is presumed that they destroyed it deliberately, meaning they revoked it. That presumption can be overcome, but it needs evidence.

The way to rely on a copy is a court action called proving the tenor. In broad terms, you have to show:

1. that the will was validly signed;
2. what its terms were, usually from a copy or a solicitor's file;
3. how it came to be lost, and that the person did not mean to revoke it.

A proving the tenor action adds time and cost to the executry, so it is worth making every reasonable search for the original first. If the will was lost while held by a solicitor or a bank, that often makes the case easier, because the presumption of revocation does not naturally arise.

What if you find more than one will?

A later valid will normally replaces an earlier one, especially if it says that it revokes all previous wills. If a later will does not revoke the earlier one, both may be read together. You may also find a codicil, a shorter document that changes part of a will. Keep every document you find, even ones that look out of date, and let a solicitor check which is the valid will before anything is paid out.

Is the will valid in Scotland?

Under the Requirements of Writing (Scotland) Act 1995, a will must be in writing and signed by the person at the end of the last page. A will that is also signed on every page and witnessed by one adult witness is self-proving, which means the court will accept it without further evidence. A will that is signed but not properly witnessed can still be valid, but the court will need evidence that the signature is genuine before granting Confirmation.

What if there is no will?

If your searches find nothing, the estate is dealt with under the rules of intestacy, and someone will need to apply to the sheriff court to be appointed as executor-dative, as explained in our guide on becoming an executor when there is no will. Our guide to what happens if someone dies without a will in Scotland explains who inherits and in what order. If a will turns up after Confirmation has been granted, the executor should stop and take advice straight away, because the estate may need to be dealt with again under the will.

How we can help

We regularly trace wills for families, write to solicitors and banks on your behalf, carry out the Registers of Scotland search, and advise on what to do if only a copy can be found. If you are dealing with an estate and are unsure whether there is a will, speak to our executry solicitors in Glasgow, Hamilton, East Kilbride or Dumfries. We also help families across Paisley and Motherwell.

This guide is general information about Scots law, correct at the date shown. It is not legal advice for your circumstances.