Common Misconceptions About Who Inherits Your Estate When There Isn’t a Will
The tragic death of 31 year old One Direction singer Liam Payne in October 2024 has shed light on the complications and unintended consequences of not having a Will in place. His £24 million estate is now due to his eight year old son and the person appointed to administer this is his ex partner, Cheryl Cole. Would he have wished this? And did he intend that his long term partner and other family members wouldn’t receive any of his fortune?
Although his estate is governed by English law, the Scottish position would also have given his ex partner a say in the administration of his estate, and a very young beneficiary an absolute right to £24 million at the age of sixteen.
His death, and recent media coverage of the administration of his estate, raises awareness of the importance of having a Will in place, irrespective of your age.
In Scotland, when someone passes away without a Will, the laws of intestacy govern how their estate is distributed. So even if you have discussed your wishes with close friends and family, with no Will in place, those inheriting your estate may not be who you would have wished to receive part or all of your estate.
Who inherits under intestacy?
Your legal spouse (including those separated with no separation agreement or divorce in place) would be the first beneficiary to have a right to your intestate estate. This is known as Prior Rights, which are certain rights to the marital home, furniture and cash – with the law setting out the maximum value they are entitled to inherit. Thereafter, if the estate exceeds the Prior Rights claim, your children would be able inherit the remainder.
If there is no spouse, then your children would inherit- becoming absolutely entitled to any share at the age of sixteen. Many deem this too young – but by making a Will, you would be able to delay the age at which your children inherited a share of your estate. This would ensure they are protected, as well as covering practical matters, such as who you would wish to care for your them in the event of your death.
So, if you wish to make specific provision for your children and your spouse, which is different from that what they would be entitled to under Intestacy, this must be done in a Will.
If you pass away with no spouse or children, then your parents and siblings would be next in line to inherit. Where there are no known relatives, a family tree would have to be instructed and those who ultimately end up receiving a share of your estate may be distant relatives, who may never have known you. This also creates additional administration costs, which more often than not exceed the cost of instructing a Solicitor to draft a Will for you.
Who can’t inherit under intestacy?
Importantly, your cohabitant does not have automatic or guaranteed rights to your estate. These limited rights also require the cohabitant to make an application to the Court –a section 29 claim– which requires to be supported by financial evidence and proof of the relationship. The decision is at the absolute discretion of the Sheriff. Therefore, if you wish to make specific provision for your cohabitee, you must have a Will in place.
Step children also do not have an automatic right of succession to their step parent’s estate. So, at present, the only way to protect the interests of step children is by making a Will.
So, who should have a Will?
The simple answer is everyone! It is not just home owners and those with valuable assets who should make a Will – no matter how small or large your estate currently is, having a Will in place is essential to ensure your wishes are carried out following your death.
Not only will having a Will provide you with the peace of mind that you have recorded your wishes, but often the additional costs associated with administering an intestate estate end up being far greater than the cost of making a Will in the first place.
So, having a Will ensures that your wishes are set out and that you have identified those who will have the authority to wind up your estate. They also can be effective tool in assisting with tax planning for many individuals.
Should you wish to put a Will in place or review the terms of an existing Will to ensure it is still fit for purpose and reflective of your wishes, our dedicated team are happy to assist – Contact us here.
