Do I Really Need A Will?

“It’s ok, don’t worry. My wife will get everything”. These words are uttered more than any other when someone dies without a Will.

It is a common misconception that, if one dies without having made a Will, your spouse will receive the entire estate. In reality, your spouse does not automatically inherit your whole estate. It doesn’t matter if you have only been married for one, ten, or thirty years. Surprisingly, your spouse is not the only person who can inherit your estate if you do not have Will.

When someone dies without a Will, this is known as dying intestate. The law of succession in Scotland provides for particular rules as to who inherits first. This is as follows:

1. Your spouse or civil partner will be entitled to what is known as “Prior Rights”. They are entitled to inherit your property (if ordinarily resident there) up to the value of £473,000. They are also entitled to furniture up to the value of £29,000 and cash up to the value of £50,000 if they have children or £89,000 if they have no children.
2. After Prior Rights have been taken care of, your spouse, civil partner, and children are entitled to Legal Rights. If you have children, your spouse or civil partner will be entitled to one-third of your net moveable estate, or one-half of your net moveable estate if you die with no children. Your children would also be entitled to a one-third share of your net moveable estate if you left a spouse or civil partner, and a one-half share if you had no spouse or civil partner.
3. What is left of your estate (known as your “free estate”) would then be distributed in accordance with the provisions dictated by the Succession (Scotland) Act. This stipulates that your parents and/or siblings may be entitled to a share of your estate.

Living together

If you are cohabiting and die without having made a Will, your partner is not automatically entitled to a share of your estate. Instead, they would be required to apply to the court to ask them to consider making a financial award. This is not guaranteed. Even if successful, your partner would only be entitled to what a spouse would be entitled to under the current legislation. Should you wish your partner to inherit your whole estate, the key is to make a Will narrating what you wish to happen upon your death.

Not only is there a particular hierarchy that is followed under the rules of intestacy, but there are other steps that must be undertaken. Without a Will in place, this means that there is no Executor to attend to your estate.

An Executor is someone who is appointed to carry out the terms of your Will and distribute the estate to the relevant beneficiaries. A court process is required to be undertaken in order to have an Executor appointed, which adds an additional layer of complexity when attending to your estate. Having a Will in place gives you the flexibility to appoint whoever you wish as Executor of your estate.

Everyone needs a Will

Having a Will in place not only means that you decide who you wish to inherit your estate, but it also provides peace of mind and comfort for both you and your family to know that your affairs will be in order when you die.

It is a simple process to have a Will put in place, and it is prudent planning for the future. It ensures that your loved ones will not be burdened with the onerous and, often, expensive task of administering your estate without a Will.

Should you wish to discuss the benefits of putting a Will in place or simply updating your current Will to ensure that it is reflective of your wishes, please do not hesitate to contact our Private Client team, who will be more than happy to assist you.

Note: This article was written by Ailiidh Ballantyne, Scullion LAW Senior Associate Director for Private Estates. The article was originally published in the Echoes Newspaper in Strathaven.