There are often misconceptions about what happens to an individual’s estate when they pass away without a Will.
We quite often hear “I don’t need a Will, everything will pass to my spouse/partner” or people assume that their closest relatives will have the authority to deal with their estate on their behalf, regardless of whether they leave a Will or not.
Whilst the above may sometimes be the case, that is not always how it works in practice and there are many reasons why you should plan for the future and put a Will in place.
When someone dies without a Will in Scotland, their estate is dealt with by intestacy laws. This means that there are certain rules which dictate how their property and other assets will be allocated.
This may not reflect their wishes, and may not reach an outcome which is favourable to the family members or friends they thought would automatically inherit their estate.
If an individual dies without a Will leaving a spouse or civil partner then they will be entitled to what is called Prior Rights. This includes the following:
Once Prior Rights have been calculated, if there is any estate remaining, the surviving spouse or civil partner will also be entitled to Legal Rights.
If the deceased had children, it will mean that their spouse/civil partner will be entitled to a further one-third of the moveable estate. If the deceased had no children, this would be one-half of the moveable estate.
Legal Rights are not limited to a spouse or civil partner, children are also entitled to claim Legal Rights. Similarly to above, they would be entitled to a one-third share of the moveable estate if there is a surviving spouse or civil partner, or a one-half share if there is no spouse or civil partner.
Succession (Scotland) Act 1964
The remainder of their estate would then be distributed in accordance with the Succession (Scotland) Act 1964 s.2.
This may result in parents and siblings inheriting a share of the estate, or even more distant family members depending on who survives the deceased.
Prior Rights, Legal Rights and the Succession (Scotland) Act apply to situations where the deceased had a spouse or civil partner. So what happens when the deceased dies unmarried but has a partner they were living with?
In short, the laws of intestacy do not afford as much protection to partners as they do to spouses or civil partners. Partners do not have any automatic rights in the same way that spouses and civil partners do.
If the deceased dies without a Will, a surviving partner can apply to the court within 6 months from the date of death to make a claim on the estate. There are no set rules on what the court will award (if anything) and it is at the Court’s discretion to determine what is appropriate.
The only way to ensure that your family members and loved ones inherit what you would like them to inherit is by having a valid Will in place at the time of your death.
By making a Will, not only are you making sure your assets go where you would like them to go, but you are also making things easier for your loved ones at an already difficult and emotional time.
We can help
We have an excellent Private Client Team here at Scullion LAW and would be happy to help you get your affairs in order or give general advice on your current situation if required. Please contact us on 0141 374 2121 or email firstname.lastname@example.org or book and appointment online by clicking here. From now until the end of July we are offering everyone in Scotland over 18 a FREE simple Will. Everything is presently done online from the comfort of your home with the solicitor witnessing you sign the Will via zoom. This is for both your comfort and safety during the present restrictions but we hope to be able to offer more face to face appointments in coming weeks/ months.
We look forward to being of assistance to you in the future.
730 Dumbarton Road
0141 374 2121