What happens to your property when you die firstly depends on how ownership is held. Ownership of property can be held in a number of ways:-
- It could be owned solely by yourself and on your death, will be dealt with under the terms of your Will or if you die without a Will, the Scottish Laws of Intestacy;
- You could own it jointly with someone else; or
- You could own it jointly with someone else, but subject to something called a ‘survivorship destination’ which can be found regularly in properties owned by couples. It can, however, also be found in Titles when there is joint ownership but the joint owners are not necessarily married/in a civil partnership, nor in a relationship. This can cause a surprising result in respect of the property when you die.
If a survivorship destination is present in the Title, on death the property automatically transfers over to the surviving owner without any administration or legal procedure. For example, 2 partners purchase a property in joint names with a survivorship destination in place. 1 partner dies, the other inherits the house automatically and now owns 100% of the house regardless of what is stated in any Will. Even if the Will dealt with the house, the survivorship destination trumps the Will. Then, when the survivor dies, the house will be dealt with in terms of the survivors Will or the Scottish Laws of Intestacy.
If you own the property jointly without a survivorship destination, again, your share of the property will be dealt with in terms of your Will or under the Scottish Laws of Intestacy.
If you do not have a Will, things become more complicated. Under the Scottish Laws of Intestacy, a spouse/ civil partner, is entitled to the matrimonial home up to the value of £473,000, along with up to £29,000 of furniture, and should you have a large amount of savings, the first £50,000 of cash if there are children, or the first £89,000 if there are no children.
If you are not married or in a civil partnership, your estate will be inherited by the next generational family member. If there is no spouse/civil partner, children will take your estate. If there are no children, then your parents and siblings will inherit, if there are no parents or siblings, then your nieces and nephews will inherit, and then on to more distant relatives.
If you live with your partner as a cohabitant, i.e. someone that you are in a relationship with and who lives in your property but you are not married to, nor in a civil partnership with, they are not automatically entitled to continue to reside within your property. They could be forced to leave the property upon your death.
Similarly, if you own the property jointly with someone else and if someone else inherits your share of the property under your Will or under the Scottish Laws of Intestacy, the new owner has no obligation to allow the joint owner to remain in the property. The new owner can force the property to be sold.
If you have a Will, you decide what is to happen to your estate when you die. You decide who will inherit, in what shares they will inherit and on what terms they will inherit. Take proper advice to ensure your Will deals with any properties that you own and do not leave it to the Laws of Intestacy by failing to put in place a Will. Further advice for this can be found on our website and I have included links below.
