What Happens If I Don’t Leave a Will?

No. Many people assume that they do not need a Will and that their assets will automatically pass to their spouse or to the person whom they would wish to benefit; however, this is not always the case. 

Under Scots law, a surviving spouse or civil partner as well as children are entitled to certain Legal Rights when a person dies with or without a Will. If you do not leave a Will, what your family gets under these Legal Rrights might actually be less than what you wanted to leave them.

When someone dies without a Will, it is said they have ‘died intestate’.  The procedures when dealing with an intestate estate are different in the initial stages from those where somebody has left a Will. See ‘Who decides who gets what?’ below for more on this.

If a person dies intestate (without a Will) then their estate will be distributed according to a specified set of rules set out in Scots succession law. These are called the intestacy rules.

Broadly speaking, the intestacy rules fall into three separate parts:

1. Prior Rights: Once any debts and funeral expenses have been paid, any surviving spouse (or civil partner) has certain rights known as ‘Prior Rights’ in the estate. These are the first to be settled from the estate.

Under these rights, a surviving spouse is entitled to the following:

• House – up to £473,000
• Contents – up to £29,000
• ‘Cash Right’ – either £89,000 or £50,000, depending on whether there are children

2. Legal Rights: Next in order of priority for settlement from the estate are ‘Legal Rights’. Both the surviving spouse and children (if any) are entitled to legal rights in the estate. Legal Rights apply to the moveable estate only. Moveable estate covers such things as personal possessions, investments and cash rather than land or buildings.

If there are children and a spouse, then the children (collectively) and your spouse are entitled to a one-third share of the remainder of your net moveable estate. If there is only a spouse or only children, then the spouse or children (collectively) are entitled to a one-half share of the remainder of your net moveable estate.

3. Free Estate: Once the Prior and Legal Rights (if any) have been exhausted, then the remainder of the estate is known as the ‘Free Estate’. The order of succession to the free estate is set out in the intestacy rules.

Due to the more complicated procedures involved in dealing with an intestate estate, this can often to lead to additional costs that seem significant when set against the cost of putting a Will in place.

There are various actions that need to be taken when someone has died without a Will. These will, of course, depend on the size of the estate and the type of assets owned by the deceased. It may involve:

• Lodging a petition with the Court to have an executor (the formal term for the individual who will administer the estate) appointed
• Obtaining an insurance guarantee bond called a Bond of Caution, and
• Lodging court papers, in the form of an Application for Confirmation, along with tax papers relating to any Inheritance Tax due

A Solicitor will be able to help you with all aspects of this.