If a loved one has died and without leaving a will, it can be difficult to know what to do or where to turn. The law mandates how the deceased’s property (their estate) is to be divided on death. Often, this will not accord with the deceased's precise wishes which is why we always recommend that our clients write a will. However, if a loved one has died without a will, we can help.
Wills, Trusts & Executry Solicitors Stirling & Tillicoultry
At watersrule, we help our clients deal with loved one’s estates throughout Stirlingshire and Clackmannanshire from our offices in Stirling & Tillicoultry. Below is a brief guide to the law of ‘intestate succession’, which applies when a person dies without leaving a Will. When a person has died leaving a Will in place, their property is distributed according to their wishes as expressed in the Will, subject to the laws of succession which give certain inalienable rights to any surviving spouse (or civil partner) and to any children.
Wills also usually appoint a person to act as executor of the Will, and often seek to appoint guardians of young children. However, many people die without a Will in place.
As such, there will be no named executors and no instruction on how property is to be divided. This is a complex and detailed area of law and we recommend instructing an experienced intestacy solicitor to guide you through the process.
The law grants certain rights to spouses and children. These are as follows:
Prior Rights in Succession
These are granted to the spouse or civil partner. After any debts owed by the deceased are paid, the surviving spouse inherits the deceased’s residence up to a certain value (called the ‘dwellinghouse’), and all furniture fixtures and fittings therein, again up to a certain value. The bereft spouse also inherits a limited amount of cash any remaining money. The amount of cash differs depending on whether or not there are any children involved. These ‘prior rights’ as the name suggests take precedence over other claims on the estate. Sometimes these rights will exhaust the estate, however, if anything is left then the ‘legal rights’ of the spouse and any children come into play.
Legal Rights in Succession
A surviving spouse or civil partner and any children are then entitled to ‘legal rights’. These are taken out of the ‘moveable estate’, i.e. all of the estate excluding ‘heritable property’ (land and buildings.) Moveable property includes cash, investments, cars & vehicles, furniture, jewellery and other items. The surviving spouse is entitled to one-third of the moveable estate if there are children or grandchildren or one-half if there are children or grandchildren. Each child has an equal claim in the moveable estate. This equal claim is shared equally among that child’s descendants if the child is already dead.
Intestate Succession and Cohabitation
The law in this area has not kept pace with changes in society. Nowadays, many people cohabit without ever formalising their relationship through marriage. This means, in practice, that the consequences of a death can be devastating for those left behind. However, since 2006, the Family Law (Scotland) Act 2005 has allowed cohabitees to apply to the court for financial provision when their partner dies. This adds a difficult and stressful dimension to the experience of losing a loved one. Further, if there is an existing spouse or civil partner from whom the deceased is separated, they may take precedence over the cohabitee. If you were cohabiting and your partner has died, contact us to find out your exact legal position.If there is anything left in the estate after prior rights and legal rights have been satisfied, the remainder of the estate is divided according to the following hierarchy. If none from one category remain alive, the following category are entitled to inherit.
The first to inherit are children who inherit the remaining estate:
- Either or both parents and brothers and sisters - half to parent or parents and half to brothers and sisters.
- Brothers and sisters take the whole.
- Either or both parents take the whole.
- Husband or wife or civil partner - surviving spouse or civil partner takes the whole.
- Uncles or aunts (on either parent's side) take the whole.
- Grandparent or grandparents (on either side) take the whole.
- Brothers and sisters of any grandparents (on either side) take the whole.
- Ancestors of intestate remoter than grandparents, on both paternal and maternal sides generation by generation successively take the whole, but if no ancestors survive in any generation their brothers and sisters come before ancestors of the next more remote generation.
- Finally, if no remaining family members can be found, the Crown, as ultimus haeres, takes the remainder of the estate.
The above is subject to the following principles:
- Males are not favoured, nor is age taken into account.
- There is ‘representation’ in all branches: This is to say that where any relative who is already dead would have been entitled to inherit, that relative's children are entitled to inherit.
- In cases where the deceased leaves behind full and half siblings, the full-blood siblings take precedence.
This is a complex structure and the above is a précis of the law, not a full guide. If you would like more information, contact us now.