Who will inherit your estate if you die without a Will?

When you die without a Will, also known as dying intestate, your estate will be wound up under the rules of intestate succession. Intestate succession is when you die without having made a Will. The rules of intestate succession in Scotland set out how much your family should receive from your estate. In this article, we will look at what happens if you die without a Will.

What does intestacy mean?

Intestacy refers to the situation where someone dies without leaving a valid will. When this happens, the laws of intestacy come into play, determining how the deceased person’s estate is distributed among their relatives. The rules of intestacy vary depending on the jurisdiction, but they generally follow a specific order of priority. Typically, the spouse or civil partner is first in line to inherit, followed by children, parents, siblings, and other relatives. Without a valid will, the distribution of the estate is strictly governed by these rules, which may not always align with the deceased person’s wishes.

The law of intestacy does not currently cater for partners who are cohabiting but are unmarried. This means that should one partner die, the surviving partner has no automatic right to share in the estate of the deceased. The best way to protect each other in a cohabiting relationship is for each party to make a Will.

Appointing an executor

When you make a Will, you choose who you wish to appoint as your executor, who can be a trusted family member or friend. If you die without a Will, someone needs to apply to the court to have an executor appointed.

This means preparing an application to the court to appoint an executor to the estate. There are rules around who can be appointed as executor. The order of priority of those who can apply to be executor is as follows:

• Next of kin (usually the surviving spouse or civil partner);
• Someone who is entitled to share in the estate under the law of succession;
• Creditors;
• The procurator fiscal (in the case where there are no relatives or creditors)

An executor must be appointed to deal with the affairs of the estate.

Managing the deceased’s estate

Once appointed, the executor must work out the value of the estate. This means finding out how much the estate is worth. It includes identifying and valuing all property, assets and investments. The executor must also identify the debts due by the deceased to arrive at a figure representing the net value of the estate.

To achieve this, the executor must contact those holding the property, assets and investments and those to whom the deceased owed money.

Once the extent of the estate has been identified, the executor must make an application to the court for Confirmation. Confirmation is the document that gives the executor authority to deal with the deceased’s affairs, including the property, assets and investments as well as the debts of the estate.

When applying for Confirmation in an intestate estate, in most cases, the executor will also need to provide a Bond of Caution. This is a type of insurance policy taken out for the benefit of the beneficiaries. It protect beneficiaries in the event of the executor misappropriating funds in the estate or failing to distribute the estate properly.

This largely depends on the type of joint ownership. For instance, if the title to the property contains a survivorship destination, the surviving partner will typically inherit the entire property. However, if there is no survivorship destination, the deceased person’s share will pass according to the rules of intestacy. Understanding the nature of joint ownership is crucial in determining how the property will be distributed.

What are Prior Rights?

Prior Rights are rights your surviving spouse or civil partner have to share in your estate, ensuring they receive reasonable financial provision when you don’t make a Will. These rights must be satisfied before there is any further distribution of the estate. At present, the surviving spouse or civil partner is entitled to:

• The family home (up to the value of £473,9000);
• The contents of the family home (up to the value of £29,000);
• If there are no children, £89,000. If there are children, £50,000.

These rights take precedence over Legal Rights. If the Prior Rights exhaust the entire estate, there will be nothing available to meet Legal Rights.

What are Legal Rights?

Legal Rights are those rights a surviving spouse or civil partner and children of the deceased to share in the moveable estate. The moveable estate is generally made up of anything that is not land and buildings. Legal Rights are based on percentages of the estate. Legal Rights apply whether there is a Will or not.

• Where there are children, the surviving spouse or civil partner is entitled to one third of the moveable estate. Any children of the deceased are entitled to one third of the moveable estate, shared equally between them.
• Where there are no children, the surviving spouse is entitled to one half of the moveable estate.
• Where there is no surviving spouse or civil partner, the children are entitled to one half of the moveable estate.

What happens to the remainder of the estate if you die without a Will?

The final destination of the remainder of your estate will depend on whether you have children. In very complex cases, the distribution of the estate may require additional legal guidance. After Prior and Legal Rights have been satisfied, if you have children, they will inherit the remainder of your estate. If you have no children, your surviving spouse or civil partner will inherit the remainder of your estate.

If you are not survived by a spouse or civil partner or children, your estate will be shared between your parents and siblings. In the absence of parents and siblings, the estate will be shared amongst a widening spread of relatives. However, if you have no relatives, your estate will rest in the hands of the crown.

If there are no living relatives

In cases where there are no living relatives who can inherit under the rules of intestacy, the estate will typically pass to the Crown. This situation is known as bona vacantia. The King’s and Lord Treasurer’s Remembrancer (KLTR)is responsible for dealing with such estates in Scotland. Occasionally, the estate may be distributed to a charity or another organization, but this usually happens only if there are no other relatives who can inherit. The absence of a valid will and living relatives means the estate’s fate is left to the discretion of the Crown.

Getting help from a solicitor

Dealing with the estate of someone who has died without a Will can be a daunting and intricate process. If you find yourself struggling to understand the rules of intestacy, seeking the advice of a solicitor can be invaluable. A solicitor can provide expert guidance on the laws of intestacy, help you understand your rights and options, and assist with the administration of the estate. Their expertise ensures that the deceased person’s affairs are handled correctly and that their wishes are respected as much as possible.

Making a valid Will allows you to decide who should share in your estate

When you make a Will, Prior Rights will no longer apply. Making a Will can also help reduce the inheritance tax that your beneficiaries might face. Legal Rights will apply, but they will be restricted to your moveable estate.

If you wish to ensure your spouse or civil partner or anyone else inherits your estate after satisfaction of Legal Rights, the only way to do that is to make a Will.

Experienced Wills Solicitors, Glasgow and Livingston

Our solicitors have many years of experience in advising clients on their Wills. We can explain the concepts of Prior and Legal Rights in detail and advise you on how best to prepare your Will to ensure your wishes are carried out after your death.

If you would like to make your Will or to review a Will you already have, please get in touch with us.