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  • Chloë Jane Fawcett LLB (Hons), DPLP

What happens if you die without a Will?

Updated: Jun 4

In Scotland, dying without a Will is known as dying intestate. When a person dies without a Will, the division of their estate follows Scotland’s hierarchical inheritance structure which is governed by the Succession Act (Scotland) 1964.





APPLYING TO THE COURT

The first thing that must be done when a person dies without a Will is to seek legal advice so the Court can be contacted. The Court must firstly appoint an executor. An executor is the person assigned to be in charge of winding up the estate. Alongside this appointment the Court must also put in place an expensive insurance policy to ensure the estate is divided in accordance with Scotland’s intestacy laws.

DEBTS

Before looking at who is entitled to the deceased persons estate, all debts must be recovered. Anything the deceased person owed is taken from their estate before anything else, even if this maxes out their estate, debts take priority. In cases of intestacy there would be more debts as it would include court and legal costs.

PRIOR AND LEGAL RIGHTS

The division of the estate always begins with Prior and Legal Rights. Prior Rights is rights given solely to spouses and civil partners; Legal Rights is those shared between children and spouses and civil partners.

Prior rights come first, and this entitles a spouse or civil partner to the following:

  • A dwellinghouse that the surviving spouse/civil partner has lived in, up to the value of £473,000. If the property equates to less than £473,000 prior rights are capped at the level of that property. Additionally, this right only entitles the spouse to one property, if there are two at £200,000 each, the spouse is only entitled to one at prior rights level.

  • Any furniture and furnishings in that dwellinghouse up to the max value of £29,000. As above if the furnishings total less than £29,000, the value of the furnishings is capped.

  • A cash sum of £50,000 if there are children and £89,000 if there are no children.

  • If there is still anything remaining in the estate then it goes into what is known as Legal Rights. Under Legal Rights only biological or adopted children, spouses and civil partners are entitled to part of the estate.

  • If there is a surviving spouse/civil partner, then that spouse/ civil partner are entitled to 1/3 of the moveable estate and the children are entitled also entitled to 1/3 of the moveable estate split equally between however many children the deceased person has.

  • If there is no surviving spouse then children are entitled to 1/2 of the moveable estate, split equally between however many children the deceased person has.

  • If there are no surviving children then a spouse/civil partner is entitled to 1/2 of the moveable estate.

The moveable estate consists of anything that is not property or land, this includes everything from ornaments to jewellery to money in the bank.


THE FREE ESTATE

The free estate is made up of any parts of the estate that were not gifted through Prior or Legal Rights. In some cases, this can leave very little in the free estate, or if a deceased person has no spouse, civil partner or children, the free estate consists of their whole estate. In Scotland the division of the free estate is laid out as follows.

Children

If the deceased person has any biological or adopted children they shall take the whole of the free estate, split between however many children there are. The free estate favours descendants, this sets up the rules so that should any children of the deceased person pass away first and they have children of their own, their children would inherit their share. So, the first people to inherit are children, failing whom, grandchildren.

Siblings/Parents

If the deceased person has no children, then the free estate would be split 50/50. 50% would go to their siblings and 50% to their parents.

If there are no surviving parents, then the siblings will take 100%. If there are no surviving siblings, then the parents shall take 100%.

Spouse/Civil Partners

If the deceased person has not been survived by any of the people mentioned above, then their spouse will inherit the free estate.

Uncles and Aunts

If they have not been survived by anyone mentioned above, then the free estate will be divided amongst uncles and aunts from both the maternal and paternal side.

Grandparents

If there are still no surviving relatives then the free estate will be gifted to grandparents on the maternal and paternal side.

Distant Relatives

If there has been no surviving family found from any of the classes of people already mentioned, then the estate will be divided up amongst great uncles and aunts, failing whom they will seek more distant relatives such as great or great-great grandparents.

DYING INTESTATE

Dying intestate can end up being a very long and complicated process for the family of a deceased, which ultimately incurs additional costs than if someone had a Will in place. It would always be our advice to have a professional Will drawn up so you can ensure your wishes are adhered to, they are legally binding and your family is protected once you are gone.

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