“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 should you die without having made a Will that your spouse will receive your entire estate. Indeed, it doesn’t matter if you have only been married for one year, ten years or thirty years, your spouse does not automatically inherit your whole estate. 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:-
- 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; furniture up to the value of £29,000 and cash to the value of £50,000 (if you have children) or £89,000 if you have no children.
- After Prior Rights have been taken care of, your spouse or 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.
- 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 where your parents and/or siblings may be entitled to a share of your estate.
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 require to apply to the court to ask them to consider making a financial award. This is not guaranteed and, 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 which is followed under the rules of intestacy, there are other steps which require to 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 requires to be undertaken in order to have an Executor appointed and adds an additional layer of complexity when attending to your estate. Making sure you have a Will in place allows you the flexibility to appoint whoever you wish as Executor of your estate.
Ensuring you have a Will in place not only means that you can 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 is prudent planning for the future. It ensures that your loved ones will not be burdened with the onerous and, sometimes, expensive task of administering your estate without a Will.
Should you wish to discuss the benefits of putting a Will in place or simply update your current Will, please do not hesitate to contact our Private Client team.